Hajjar v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hajjar v Secretary, Department of Education [2024] NSWPIC 159
APPLICANT:	Maria Hajjar
RESPONDENT:	Secretary, Department of Education
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	2 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” is dispute pursuant to section 4(a), section 4(b)(i) and section 4(b)(ii) and the respondent raises a defence under section 11A in respect to discipline; consideration of the Public Health Order in relation to Covid-19; Held –findings made that section 4(a) and section 9A established by the applicant, and section 11A defence not established by the respondent; Northern NSW Local Health Network v Heggie and Webb v State of New South Wales applied.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(a) of the Workers Compensation Act 1987 the applicant sustained a psychological injury in the course of her employment with the respondent with a date of injury of 27 August 2021. 2. Pursuant to s 9A of the Workers Compensation Act 1987 the applicant has established her employment was a substantial contributing factor to her injury. 3. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987. 4. The respondent is to pay the applicant weekly benefits compensation as follows: (a) from 9 November 2021 to 7 February 2022 pursuant to s 36(1) of the Workers Compensation Act 1987; (b) from 8 February 2022 to date and continuing pursuant to s 37(1) of the Workers Compensation Act 1987, and (c) the rates payable in (a) and (b) above are to be calculated on the basis of the agreed pre-injury average weekly earnings figure of $2,005.38, as indexed from time to time. 5. The respondent is to have credit for payments made in the above periods. 6. The respondent is to pay the applicant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Maria Hajjar was employed as a high school teacher with the respondent, Secretary, Department of Education, from 1995 teaching mainly English, Geography and History. She has not worked since 8 November 2021. She has taken sick leave, annual leave and long service leave. She was medically retired in 2023.
In her Application to Resolve a Dispute (ARD) Ms Hajjar seeks compensation under the Workers Compensation Act 1987 (the 1987 Act) for the psychological injury that she alleges she sustained arising out of or in the course of her employment with the respondent in relation to:
“Adjustment disorder with anxious distress
The injury occurred as a result of events arising out of, or in the course of, employment concerning a high turnover of senior executives and other staff including seven principals and numerous disputes with the respondent over a five year period from 2016 to 2021 which resulted in the removal of a principal and ongoing toxic work environment. This resulted in the applicant suffering anxiety, fatigue and impact on he
emotional and physical wellbeing. The applicant continued working for the respondent and as a result of events arising out of, or in the course of, employment concerning the mandate to be vaccinated commencing on 27/08/2021 to 08/11/2021 the applicant suffered psychiatric injury.”
The ARD was amended at the preliminary conference stage and confirmed in a written direction issued on 20 October 2023 to add to the pleaded date of injury of 8 November 2021 “and subsequent investigations by the Professional and Ethical Standards unit from
17 November 2021 until 17 June 2022”.
The applicant’s counsel stated he relies on injury simpliciter under s 4(a) of the 1987 Act, but also and in the alternative, s 4(b)(i),and in the further alternative, s 4(b)(ii).
The respondent’s counsel confirmed that liability under ss 4, 4(b), 9A, 11A of the 1987 Act are in issue. The respondent’s reliance upon a defence under s 11A relates to whether
Ms Hajjar’s injury (if accepted) has arisen because of reasonable action by the respondent in relation to discipline.
Ms Hajjar’s capacity for employment is not in dispute. The claim for weekly compensation commences on 9 November 2021 and is an ongoing claim. The pre-injury average weekly earnings (PIAWE) figure is agreed at $2,005.38, as indexed from time to time. The parties agree if Ms Hajjar is otherwise successful an award can be entered in her favour from
9 November 2021 to date and continuing pursuant to ss 36 and 37 of the 1987 Act, with an order to be made that the respondent is to obtain credit for payments made in the period.
In relation to the claim for medical expenses, the parties agree that if Ms Hajjar is successful, a general order can be made pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 19 December 2023 which was held in person. Mr Dodd of counsel appeared for her instructed by Mr McCabe, solicitor.
Mr Gaitanis of counsel appeared for the respondent instructed by Ms Cotchett, solicitor.
Written submissions were sought in relation to the decision of the Court of Appeal in Secretary, Department of Education v Dawking[1] and these have been supplied.

EVIDENCE

[1] [2024] NSWCA 4 Dawking.

Oral evidence

There was oral evidence from Ms Hajjar and the main submissions were presented orally and a sound recording was made of those submissions and is available to the parties. A transcript (T) has been made from the recording.

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD-1) dated 11 October 2023 filed by the respondent;
(d)    Application to Admit Late Documents (AALD-A) dated 23 October 2023 filed by the applicant;
(e)    Application to Admit Late Documents (AALD-B) dated 6 December 2023 filed by the applicant;
(f)    applicant’s written submissions dated 14 February 2024, and
(g)    respondent’s written submissions dated 22 February 2024.

FINDINGS AND REASONS

In the matter of Davis v Secretary, Department of Education[2] I stated that:
“It needs to be borne in mind that the outcome in this case does not turn upon whether the Government’s Covid-19 response and vaccine mandate were reasonable. These were lawful steps taken by the Government in response to a world-wide pandemic in which many people who contracted Covid-19 died. The steps taken were designed to minimise illness and death of members of the community, including to the school community made up of workers and children.”
[2] [2022] NSWPIC 715, Davis.
This statement was cited with approval by the President, His Honour Judge Phillips in the appeal in the matter of Secretary, Department of Education v Davis[3] and I find it needs to be borne in mind in this matter as well.
[3] [2024] NSWPICPD 18, Davis appeal decision.
Both parties have cited various other “vaccine mandate” cases involving this respondent and urged me to follow the same outcome for reasons of comity. However, I decline to do this because I find each case is fact sensitive. Each applicant has a different medical history and it is trite to say, but true, that people react differently to events. Also, in the various cases that I now have had to decide, and in those decided by other Members of the Commission, different counsel have appeared and the submissions are not identical in each case. Even where the same counsel has appeared in multiple matters their submissions are not identical. Furthermore, in some cases injury is in issue and others not.
Each case must be determined on its own facts and evidence.

Ms Hajjar’s oral evidence

I sought for oral evidence to be taken from Ms Hajjar because all of her statements had not been signed. She advised that at work she uses the maiden name Marcic. Her husband is also a teacher. She said she had signed the statement at page 18 of the ARD and by signing there she intended to adopt the whole of the statement which is dated 30 November 2021. She also gave evidence that the statement from pages 19 to 24 of the ARD was signed by her husband, Jim Hajjar and she was present when he signed it but before that she said she had written the statement and she adopts what is in it. This is the statement dated
27 January 2023. Ms Hajjar also confirmed that she forwarded the letter at pages 25 and 26 of the ARD to the Independent Review Office and she had signed that letter, with the one in the ARD being an unsigned copy.
She also gave evidence that the statement at page 1 of the AALD-A has her signature on the bottom. This is the statement dated 23 October 2023.
The respondent did not cross-examine Ms Hajjar.

Ms Hajjar’s written statements

Ms Hajjar’s first statement is dated 30 November 2021.[4] Her statement contains information which reads like a manifesto about mandatory vaccination. For instance, in her statement dated 30 October 2021 at [14] she states, “I believe the mandatory COVID vaccination order cannot be justified as it impinges on my liberties and rights that exist in Australia”.
[4] ARD p 9.
I have had to decide a number of psychological injury cases involving teachers, and the same solicitor, and the exact same paragraphs, under the heading Education and Care Workers, such as [III], [12], [14] to [29], [31] to [34] of Ms Hajjar’s statement, appear word for word in other workers’ statements.[5] This is not a helpful way to present a case. Statements should reflect the applicant’s own words. However, Ms Hajjar has given oral evidence that she adopted the contents of this statement and I must take it as being her own evidence.
[5] Such as in the matter of Smith v Secretary, Department of Education W5273/23.
Mr Gaitanis referred heavily to these paragraphs to support his argument that Ms Hajjar did not get an injury from the actions of the respondent in implementing the Government’s mandate, arguing that these paragraphs, and other aspects of her evidence, demonstrate what she reacted to was the mandate per se.
On 23 September 2021 at 3.02pm the Minister for Health and Medical Research,
Brad Hazzard MP, made the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (the Public Health Order). In that Order the Minister directed that education and care workers must not carry out relevant work on or after 8 November 2021 unless the worker had:
(a) two doses of a COVID-19 vaccine, or
(b) been issued with a medical contraindication certificate.
“relevant work” was defined in the Public Health Order as “work at a government school or non-government school”.
This mandate, or more correctly described as the Public Health Order, only applied to
Ms Hajjar because she was a teacher. The Public Health Order did not require all citizens to be vaccinated. It provided that teachers who were not doubly vaccinated could not work at a school. It did not require Ms Hajjar to be vaccinated.
Because the Public Health Order applied to her only because she was a teacher, I find that if she suffered a psychological injury because of that Order it comes within the s 4(a) definition of injury, “arising out of” of her employment because the causal connection is between the employment and injury. See: Nunan v Cockatoo Docks & Engineering Co Ltd[6] which was relied upon in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd[7] in particular from [73] to [75]. At [75] the Court of Appeal found that a worker would have established that an injury arose out of employment if it appears that the fact of his being employed in the particular job caused, or to some material extent contributed to the injury. In s 4(a) of the 1987 Act “arising out of” employment requires a causal element, whereas “in the course of employment” requires a temporal element. If this was the cause of the injury, then as submitted by Mr Gaitanis s 9A needs to be satisfied by Ms Hajjar. For reasons discussed later in these reasons I am not satisfied that Ms Hajjar suffered an injury due to the Public Health Order because it was issued weeks after the Department’s emails of 27 August 2021.
[6] (1941) 41 SR (NSW) 119, Nunan.
[7] [2009] NSWCA 324, Badawi.
Another authority to bear in mind when considering Ms Hajjar’s evidence is Attorney General v K[8] where Roche DP summarised at [52] various principles about causation in psychological injury cases, as follows:
“(a) employers take their employees as they find them. There is an “egg-shell psyche” principle which is the equivalent of the “egg-shell skull” principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.”
[8] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K’s case.
Therefore, I find just because Ms Hajjar uses “irrational” reasoning or even has “a flawed perception of events because of a disordered mind” such as when she says “I believe the mandatory COVID vaccination order cannot be justified as it impinges on my liberties and rights that exist in Australia” that does not preclude her suffering an injury under s 4(a) arising out of her employment.
However, it is important to be aware that there is a difference between the Government’s Public Health Order and the communications by the Department of Education. When the terminology “vaccine mandate” is issued it tends to cloud that distinction. As discussed above the Public Health Order did not get issued until 23 September 2021, but Ms Hajjar states at [9] of her first statement:
“These symptoms of anxiety and depression have been compounded and exacerbated by the announcement of mandatory vaccination as a new condition of employment on 27 August 2021. These symptoms of anxiety and depression have been compounded and exacerbated by the announcement of mandatory vaccination as a new condition of employment on 27 August 2021.”
Therefore, she is saying that she reacted to the communication from the Department of Education which occurred on 27 August 2021. She also concludes her statement at [34] by asserting she has “been totally incapacitated for work as a result of the events arising out of, or in the course of, my employment with my employer from 27 August 2021 [9](sic) and the feelings are increasing.”
[9] This is an error as she kept working until she took sick leave on 5 November 2021.
The first communication from the Department of Education was on 27 August 2021. I deal with this later in these reasons.
Because Mr Dodd has framed Ms Hajjar’s case as involving injury under s 4(a) of the 1987 Act, in addition and in the alternative s 4(b)(i) or alternatively s 4(b)(ii) therefore, it is necessary to consider the nature of the injury suffered by Ms Hajjar.
If it comes within s 4(a) then s 9A must be considered, whereas if it falls under s 4(b) s 9A does not apply and the definition of injury requires the employment being the main contributing factor to the contraction of the disease, and if s 4(b)(ii) applies the employment must be the main contributing factor to the aggravation etc of disease.
Because of the way the case is pleaded I have summarised the evidence concerning the period before August 2021, the email on 27 August 2021, events after 27 August 2021 to
8 November 2021 and those events after 8 November 2021.

Period before 27 August 2021

Returning to Ms Hajjar’s statements, in her first statement she does not give much detail about the events up to 2021. She states:
“I have suffered acute anxiety in my workplace due to emotionally taxing circumstances
and the unprecedented high turnover of senior executive and other staff including seven principals and numerous deputies in the space of a five year period. This included the subsequent dismissal/removal of a substantive principal and an ongoing toxic work environment. This resulted in anxiety, change fatigue and an overall detrimental mental impact on my emotional and physical wellbeing.”
Mr Dodd made the following submissions about the evidence before 27 August 2021:
(a)    On 28 February 2020 her general practitioner, Dr Maria Jelinek from the Casula Family Practice referred her to a psychologist for an opinion and management of anxiety/depression.[10] Dr Jelinek that day completed a Mental Health Care Plan.[11] I note in that plan the doctor records:
[10] AALD-A p 23.
[11] AALD-A p 25.
“Came in due to issues at work
ongoing for a long time
she works as a teacher her principal currently under investigation.
DASS21 done 13 for depression – severe, 11 for anxiety- ext severe, 14 for stress- severe”
(b)    Evidence from Ms Delimanis, psychologist from Southern Cross Counseling and Psychological Services, shows Ms Hajjar attended on 4 May 2020.
(c)    On 10 October 2020 Rene Delimanis reported to Dr Jelinek that Ms Hajjar had symptoms consistent with a “Generalised Anxiety Disorder, Severe.”[12]
(d)    A further Mental Health Care Plan was completed on 31 October 2020 by
Dr Alberto Arcilla, from the same practice as Dr Jelinek.[13]
(e)    On 12 July 2021 Ms Delimanis reported to Dr Arcilla again finding generalised anxiety disorder-severe.[14] It was also noted that her anxiety was heightened by having to wear a face mask and it was hindering her mental health.
(f)    That there was no doubt that Ms Hajjar was having some psychological response to what was occurring at work in 2020, and incurred medical expenses, but it was not incapacitating. Mr Dodd submitted she was “putting up with it” and dealing with it by the way of the above treatment.
(g)    It was submitted that the key thing is that Ms Hajjar was suffering an injury at that stage. Dr Rastogi took a history of “anxiety and adjustment symptoms related to work-related stressors associated with policy and principal changes. She described the workplace as hostile and toxic and she continued to cope and was percussor [sic, precursor] to her current deterioration and there were issues of identity and being disrespected and denigrated”. The doctor adds “she was functioning well in full capacity maintaining a full-time job and independent living. Although there was anxiety and adjustment symptoms relate to toxic work environment with lack of support, she was working full time.”
[12] AALD-B p 30
[13] AALD-B p 28.
[14] AALD- B p 31.

27 August 2021

In her second statement dated 27 January 2023[BG1] , she refers to the email from Georgina Harrisson, Secretary of the Department of Education, dated 27 August 2021 which Ms Hajjar says was in relation to “mandatory vaccinations for school staff”. This email was addressed to all school based staff. It appears at p148 of the ARD. It was sent at 10.52am. It has in the subject line “mandatory vaccinations for school staff”. It states in the dot points in the first section:
“• Vaccinations are a critical part of the COVID-safe return to face-to-face
learning plan, to be announced today.
• To allow for a safe return to face-to-face learning under the roadmap, NSW
Health has advised that by 8 November all NSW public school and preschool
staff will be required to be fully vaccinated.
• NSW Health will provide priority vaccinations at Qudos Bank Arena for greater Sydney school-based and preschool staff the week beginning 6 September. Staff are encouraged to make use of the GP network to be vaccinated with whatever vaccine is available as soon as possible.
• Staff can access up to 2 hours of special leave to receive their COVID-19 vaccinations, if they cannot book an appointment outside of work hours.”
In the body of the email Ms Harrisson says “[f]or this reason, today the Premier is expected to announce that - as with the aged care and health sectors - mandatory double doses of vaccinations will be required for all public school and preschool staff from 8 November.”
The wording of this communication did refer to “mandatory” twice. The second dot point qualifies this by advising “to allow for a safe return to face to face learning…staff will be required to be fully vaccinated”. That email did not say that teachers would be vaccinated against their will and it seems to apply to facilitate a face to face learning situation.
Certainly when the Public Health Order was issued three weeks later on 23 September 2021, there was no mandatory vaccination requirement, just that if a teacher was unvaccinated they could not attend a school.
The balance of the email from Georgina Harrisson stated:
“Dear colleagues
Thank you to everyone who filled out our recent vaccination status survey. Of those who responded, almost two-thirds of school staff said they have now already had the first dose of a vaccine. I know we are all keen to see students in classrooms again, in a safe way that protects both our staff and our students -this is our top priority. Your input has been invaluable in planning our safe return to school. We have been working in close partnership with NSW Health on the safest return to face-to-face learning plan. More details will be announced at the Premier's press conference this morning.
Vaccinations are a critical element of our plan - alongside mask wearing, reduced mingling between cohorts, and staggered start and finish times. We have heard loud and clear from our principals, stakeholder groups and school communities that this is fundamental to ensuring confidence in any return to school sites.
For this reason, today the Premier is expected to announce that - as with the aged care and health sectors - mandatory double doses of vaccinations will be required for all public school and preschool staff from 8 November.
We are working hard with NSW Health to make sure staff can access an appropriate vaccine across the state. NSW Health will provide priority vaccinations at Qudos Bank Arena for Greater Sydney school-based and preschool staff the week beginning 6 September. Staff are encouraged to make use of the GP network to be vaccinated with whatever vaccine is available as soon as possible. We will continue working with NSW Health to prioritise vaccinations for all staff across the state.
Eligible students aged 16 and over are also strongly encouraged to get vaccinated and will be enabled to do so before their return to school.
This is a significant undertaking that will be challenging for some, but it is vital to ensure our schools are as safe as they can be for our students and staff.
I know you will have many questions. We are working through the details of the Public Health Order in the coming days and will share more details as soon as we have clarity. I wanted you to hear this from me first as I know it will affect our staff in many different ways.
We will update our vaccination intranet pages with more details, including priority vaccination for all school staff, as soon as we can. Look out for messages from your DELs and principals for information specific to your school and your situation.”
At [9] of her first statement Ms Hajjar says, “These symptoms of anxiety and depression have been compounded and exacerbated by the announcement of mandatory vaccination as a new condition of employment on 27 August 2021.”
In her second statement at [5] Ms Hajjar refers to another email received on 27 August 2021 from Georgina Harrisson sharing plans for a safe return to school. This email does not seem to be in evidence despite the list at p147 of the ARD referring to emails on 27 August 2021 at 11.02am and 12.20pm, the only one attached is the one referred to above sent at 10.52am.
This second email is not referred to in the decision in the first instance, Presidential or Court of Appeal decisions in the matter of Dawking. I note in the matter of Martsoukos v Secretary, Department of Education[15] the Member stated in his footnote numbered 17 that the email sent at 11.02am was a copy of the earlier email just adding a recipient, Susan Roberts at the Department.
[15] [2024] NSWPIC 16, Martsoukos.
In [5] of her statement Ms Hajjar says this email outlined double doses of COVID-19 vaccinations would be mandatory for any staff on school sites from 25 October and all school staff from 8 November. She says:
“As a result of this email I was shocked, anxious and feeling forced to have a
trial drug injected into my body and worried about what it would do to me. I am greatly
concerned this trial drug would cause in my body. I also felt that I was being forced to
choose between financial stability for my family and concerns for my own health should I elect to take this drug.”
In [6] and [7] she expressed her feelings as a reaction to receiving these emails. Interestingly, she offers as one reason that there is “no data on immune compromised subjects”. There is no medical evidence to say she is immune compromised. Indeed,
[16] ARD p 64.
Dr Abeya took a history that she does not have any chronic illness.[16]
In her third statement dated 23 October 2023, she says when the email on 27 August 2021 arrived from Georgina Harrisson she was working from home, doing lessons via zoom working fulltime. She says she had not decided if she was going to take the vaccine or not at that point in time and the announcement by Ms Harrisson came to her as a shock, she felt as if she had been pushed into a corner. She says she could have kept on working from home doing zoom lessons. This shows how irrational her thinking was in my view. There were real reasons to have children return to school to be taught, for their well-being. The idea that
Ms Hajjar could have taught a classroom of students who were on school premises with her being via zoom is obviously not practical. It is commonsense that there would need to be a teacher in the room to supervise the students, even if they are high school students.
Ms Hajjar completed an incident report which she gives her date of injury as 27 August 2021 at approximately 11am.[17] She says the injury was caused by the announcement of mandatory COVID-19 vaccination as a new condition of employment for teachers. She says she stopped work on 5 November 2021 and she discloses that she had been diagnosed with anxiety and depression in 2019 due to stressors related to work. The form is dated
[17] ARD p 27.
30 November 2021.
A certificate of capacity was completed by her general practitioner Dr Phillip King on
18 November 2021 but has the date of injury of 27 August 2021. The description of injury is “27/08/2011, informed of mandate for vaccination in order to keep her employment. She was not comfortable with having the vaccine, so is now on long-service leave/sick leave”. The doctor diagnosed anxiety/depression and noted her past history in 2019. It certified her having no current capacity for any work back from 8 November 2021 to 6 December 2021.
If Ms Hajjar developed a psychological injury as a result of receiving the email of
27 August 2021, it would have been received in the course of employment and s 4(a) established.

Period after 27 August 2021 to 8 November 2021

On 2 September 2021 at 2.32pm Ms Hajjar received an email from Yvette Cachia, Chief People Officer.
On 23 September 2021 at 3.02pm the Government issued the Public Health Order, as discussed at [22] above.

On 27 September 2021 Ms Hajjar has copied the NSW Department of Education information sheet headed Vaccinations[18]. Most of this information sheet is informative however at the end of the document it is mentioned that if a school staff member refuses to be vaccinated, and cannot obtain a medical contraindication certificate, the school principal needs to notify the department, who will then take appropriate action which can include termination of employment.[19]
[18] ARD p 155.
[19] ARD p 161.
On 18 October 2021 Georgina Harrisson issued a Determination No 1 of 2021 under the Teaching Service Act 1980, COVID-19 Vaccination Evidence, the purpose of which was set out in [1.1] thereof as follows:
“The purpose of this Determination is to establish the requirement that employees of the Department must be vaccinated with two doses of a COVID-19 vaccine and provide evidence of that vaccination unless they are unable to be vaccinated because of a medical contraindication, as a condition of their employment with the Department.”
It applied to all employees of the respondent employed in Teaching Service. Clause [4.1] made it a condition of employment in the Teaching Service that an employee must provide, to the responsible person for their ordinary place of work:
“(a) vaccination evidence; or
(b) if the employee is unable to be vaccinated against COVID-19 because of a medical contraindication, a medical contraindication certificate.”
Clauses [4.2] and [4.3] of Determination 1 provided:
“4.2 All employees who work, or will be required to work, on a Department site to support the staged return of student cohorts to a Department school are required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 18 October 2021.
4.3 All other employees who attend, or ordinarily attend, a Department school for their work will be required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 8 November 2021.”

Events after 8 November 2021

On 17 November 2021 Scott Brown from the Professional and Ethical Standards Directorate (PES) wrote to Ms Hajjar because she had entered her vaccination status as not vaccinated:[20]
“Allegations of Misconduct
It is alleged you engaged in misconduct by:
1. Failing to comply with the directions issued by Ms Yvette Cachia, Chief People Officer, on 22 October 2021 and 1 November 2021, to show your principal a copy of your vaccination evidence by 8 November 2021.
2. Failing to meet the conditions of your employment as set out in the I find the contents of this email was not of a disciplinary nature, it provided information and encouragement about getting vaccination. determination made by Ms Georgina Harrison, Secretary Department of Education, on 18 October 2021, that an employee must provide either (a) vaccination evidence or (b) a medical contraindication certificate.”
[20] AALD-1 p 1.
The balance of the letter gave Ms Hajjar details to provide a response and support that is available. The letter also advised of possible outcomes if the allegation of misconduct is sustained, disciplinary action may be taken including the placement of her name on the list of people employed by the Department.
On 19 January 2022 Ms Hajjar received by email a letter from Darryl Currie, Executive Director of PES.[21] Stating that the investigation about her conduct has been completed. The findings are that the allegations are sustained and amount to misconduct. Mr Currie set out five disciplinary options ranging from a caution to dismissal. Ms Hajjar was suspended without pay and she had 14 days to provide a response.
[21] AALD-1 p 3.
On 6 June 2022 Daryl Currie wrote to Ms Hajjar advising that the PES investigation has been paused while the Department undertakes a risk assessment. Mr Currie advises as this assessment will take some time to complete he will remove her from suspension without pay effective from 13 May 2022. She was directed to undertake alternate duties at her residence and will be paid her normal salary.
On 17 June 2022 Rob Easton, Director of Investigations PES wrote to Ms Hajjar.[22] This letter set out the tasks for Ms Hajjar to complete as alternative duties, such as working on lesson plans.
[22] AALD-1 p 9.
I note that the amendment to the ARD included events including up to 17 June 2022. Therefore, I will not consider the events thereafter even though the respondent’s counsel did submit the transfer offer was reasonable.
On 25 July 2022 Daryl Currie wrote to Ms Hajjar referring to his letter dated 19 January 2022 and he advised he was not going to imposing dismissal from employment instead he was going to issue a remedial warning that she must comply with lawful directions and all conditions of employment.[23] Mr Currie advised it was untenable for her to remain at James Meehan High School and he was transferring her to an equivalent position at a different school. He stated that the location of the transfer will be negotiated with your current Director and with corporate staff. Ms Hajjar was advised the warning would be held confidentially on her PES file but would not be placed on her personnel record.
[23] AALD- p 12.
On 27 June 2023 Julie Bozinovski for Scott Dries, Senior Manager, Shared Services Human Resources, wrote to Ms Hajjar with the financial details in relation to being medically retired.[24]
[24] AALD-B p 2.
In her statement dated 23 October 2023 Ms Hajjar refers to the decision to transfer her. At [7] and [8] she says:
“I felt very intimidated, as I was in a very fragile state at that time, and thought that it was extremely inconsiderate of them to move me away from a community I had served for decades. It was harsh, cruel and unnecessary.
This sent me into a further realm of depression. The accusation of misconduct made my symptoms worse. I saw my General Practitioner and he kept on providing medical certificates as I was unable to work because of my symptoms.”

Dr Wood’s evidence

The evidence of Dr Wood is contained in his statement dated 31 May 2022 and he was cross-examined in the matter of Davis v Secretary, Department of Education.[25] The respondent agreed to the tender of this cross-examination in Ms Hajjar’s matter.
[25] W1987-22, Davis. Transcript is at AALD-A.
Because it is documented I am not going to reproduce his evidence. Many of the questions asked were to have him confirm the contents of the various emails, which are in evidence. I summarised his evidence in Davis but as the counsel in this matter did not significantly rely on Dr Wood’s evidence I am not going to repeat that summary in these reasons.

Dr Rastogi

Dr Rastogi diagnoses an adjustment disorder with anxious distress. It seems the doctor attributes this to a variety of causes as to how Ms Hajjar was treated since 27 August 2021 because even though she refers to the earlier situation at the school she uses the term precursor. She does not seem to have considered if the injury is an aggravation of the earlier condition.
Dr Rastogi sets out the history of the injury and says Ms Hajjar stated that the public health order mandate requirements for vaccination were made on 26 August 2021. This is not correct. The evidence filed in these proceedings shows that the Department’s first email was sent on 27 August 2021 but the Public Health Order was issued by the Government on
23 September 2021. Dr Rastogi states that Ms Hajjar became anxious and worried about her financial future and was in a fog, she felt helpless and trapped with anxiety and was overwhelmed. The doctor attributes these symptoms to 26 August 2021, which I regard as an error for 27 August 2021.
The doctor then takes the history of emails from the Department and that Ms Hajjar says she was receiving emails from the deputy principal and felt targeted. However, there are no emails from the Deputy Principal in evidence. Dr Rastogi says Ms Hajjar said that staff were very apprehensive to work around unvaccinated people. However, there is insufficient detail about this. The evidence seems to be that Ms Hajjar continued working from home until she went on sick leave on 5 November 2021 and then she did not return to school. Dr Rastogi also says Ms Hajjar says her medical information was available to everyone and she felt her privacy was invaded. I do not understand what the medical information to which she refers as being available, as Ms Hajjar says she filled out the portal to say she was unvaccinated.
Dr Rastogi also says she has been terminated. Dr Rastogi’s report is dated 10 April 2022 and at this point in time Ms Hajjar had not been terminated. She had been suspended.
Given Ms Hajjar has pleaded her injury on three bases, it makes it difficult to discern the causes of her injury when there appears to be a lack of attention to accurate detail.
Dr Rastogi says in point 6 that her condition has not wholly or predominantly been caused by action taken by her employer in respect to promotion, appraisal, discipline and dismissal. The doctor was responding to a question asked of her, and it is not clear why she was asked about promotion and performance appraisal when the same do not arise in Ms Hajjar’s case.
Dr Rastogi does not explain her answer. In answer to question 5 that doctor says:
“In absence of any other non-work stressors, her employment is the main contributing factor to the injury sustained and/or diagnoses. The reasons being coercion and discrimination to receive vaccination as a mandatory requirement and being discriminated with no support provided leading to vocational uncertainty. Her anxiety is debilitating causing apprehension, self-doubts and fear driven responses. She felt punished and denigrated and felt the undue pressures. The coercion magnified anxiety and distress leading to anxiety disorder.”

Dr Abeya

Dr Abeya undertook an independent clinical assessment to ascertain fitness for work on
12 December 2022.[26] The doctor took the history when she was told she was guilty of misconduct this “made the situation even more worse. She said she felt like a criminal…”
Dr Abeya said she was temporarily unfit to return to her teaching position but that she has not had adequate treatment. The doctor said she recommended a review in four to five months.
[26] ARD p 62.
Dr Abeya diagnosed a major depressive disorder with anxious distress.
On 16 May 2023 Dr Abeya provided a further report noting that there had been quite a significant functional decline with worsening symptoms of anxiety and depression. She advised that anything to do with the Department has caused her quite a significant degree of anxiety. The doctor advised that on the balance of probability she is of the opinion that
[27] ARD p 70.
Ms Hajjar would need to be considered unfit for her role with the Department on a longer term more permanent basis.[27]

Dr Nagesh

Dr Nagesh, psychiatrist, provided a medico-legal report to the insurer’s solicitors dated
[28] ARD p 55.
24 August 2023.[28] The doctor has the history that Ms Hajjar said her symptoms commenced with the announcement of the COVID-19 vaccine mandate. She alleged multiple emails of a threatening nature were sent to her, she felt pushed into a corner and that she had no choice. She was threatened she would be handed over to PES and accused of misconduct. She also referred to Mr Currie advising her she was to be redeployed and when she queried his decision she was ignored. Dr Nagesh sets out the symptoms Ms Hajjar alleges that she suffered.

Dr Nagesh diagnosed an episode of major depressive disorder of moderate degree with anxious response. He says at the time of her injury her earlier post-natal depression was in remission. He says there are no non-work factors. Employment is the main contributing factor to the aggravation etc of her condition. Dr Nagesh opines that the whole or predominant cause of Ms Hajjar’s condition was the reasonable action by the employer in respect to discipline and dismissal:
“The claimant's symptoms have developed in the context of the mandated COVID vaccine, and the subsequent events and the claimant's employment was terminated in the context of her vaccination status, hence, on the balance of probabilities, her illness has arisen in the context of the mandated COVID vaccine for NSW disability workers [sic].”
Dr Nagesh found Ms Hajjar is totally incapacitated for work.
Dr Nagesh does not express an awareness that Ms Hajjar was receiving psychological treatment in 2020.

Determination

Both counsels made oral submissions. Because they have been sound recorded, and the written transcript is 72 pages, I am not going to repeat them verbatim. The main thrust of
Mr Dodd’s submission is firstly that the events leading up to 2021 arose out of or in the course of Ms Hajjar’s employment with the respondent. As there is no factual and medical evidence to the contrary, I accept the evidence given by Ms Hajjar about these matters in her statement and to Dr Rastogi about these events. Her condition is corroborated by the treatment medical evidence summarised earlier.
I accept Dr Rastogi’s conclusion about these events as not causing Ms Hajjar incapacity, although that is not the test of establishing “injury”. I accept the doctor also regarded these events as a precursor. By that I assume she meant, made Ms Hajjar vulnerable. Ms Hajjar was diagnosed as suffering a generalised anxiety disorder which Dr Arcilla found to be severe in July 2021. The doctor did refer to her being anxious about mask wearing but does not explain why and the respondent’s medical evidence does not deal with the history of her mental state in 2019 and 2020.
Psychological injures are often multi-faceted. I am satisfied that Ms Hajjar did suffer from a psychological injury in the course of her employment with the respondent before
27 August 2021. However, the psychological injury she claims in these proceedings is an adjustment disorder with anxious distress. She was not suffering from an adjustment disorder before 27 August 2021. Therefore, I find her condition before 27 August 2021 should be treated as of a different character to that diagnosed later.
Secondly, Mr Dodd submitted that the injury she suffered on 27 August 2021 is an injury simpliciter coming within s 4(a) of the 1987 Act. He submits there was a massive change in her psychological state at that date. I accept this submission. Ms Hajjar’s evidence is clear that she was shocked and anxious receiving the emails on 27 August 2021 and Dr King diagnosed she was suffering from anxiety and depression from the date of injury
27 August 2021.
Mr Gaitanis submitted that an injury was suffered but it was not because of the transfer to another school or because she was medically retired in 2023. He submitted “we know that as at 27 August 2021… she can no longer do tasks that require concentration. She is affected psychologically…”[29] Mr Gaitanis also submits in relation to the event of 27 August 2021, that Dr Abeya took a history that Ms Hajjar’s world changed as a result of receiving this email.
[29] T40-41.
Later in his submissions, Mr Gaitanis referred to the case of Boyd v Secretary, Department of Education,[30] and said that if it is accepted that Ms Hajjar had a psychological injury as at the end of August 2021 then any events subsequently did not have any real weight in terms of the issue about reasonableness.[31] He also submitted that the whole or predominant cause of Ms Hajjar’s injury was the vaccination policy that was around the end of August 2021 which came within the purview of discipline.[32]
[30] [2023] NSWPIC 605, Boyd.
[31] T 50.
[32] T51.
So he seems to be acknowledging the presence of a s 4(a) injury, even though none was conceded. Mr Gaitanis then submitted that Ms Hajjar had made a personal decision not to be vaccinated and he argues this falls outside the scope of s 9A. He had referred earlier to the decision in Bjekic v State of New South Wales[33] and AV v AW.[34]
[33][2023] NSWPIC 27, Bjekic.
[34] [2020] NSWWCCPD 9, AV v AW.
To establish liability, Ms Hajjar needs to satisfy s 9A. Mr Dodd submits that “a substantial contributing factor” is established because this is the only factor giving rise to psychological injury. I find s 9A is satisfied because of sub-section 2(d), the same injury would not have happened to Ms Hajjar had she not been employed as a teacher because the general public were not required to be vaccinated.
Section 9A of the 1987 Act relevantly provides:
“No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note— In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) ...”.
At [81] in Bjekic Wood DP stated that the basis for the Member’s determination was that the injury was caused by the directives from the NSW Government and not by the respondent employer. She stated that decision was arrived at by noting the common ground between the parties, consideration of the available evidence and the application of the principles in AV v AW. A key reason for the Presidential decision in Bjekic was that it was not an error for the Member to fail to deal with matters that were not raised before him.
The facts in AV v AW differ markedly from Ms Hajjar’s case. The worker in that case was found at first instance to have a psychological injury that was aggravated by incidents in the workplace when she saw a small number of pregnant women. At [104] it was found:
“There was evidence of exposure to triggers in non-employment circumstances, which the worker found distressing, both before and after the appropriate deemed date of injury. There was lay evidence of such encounters occurring in non-employment circumstances. There was the worker’s candid and accurate observation that she would be exposed to “pregnant people everywhere”. There was no medical evidence addressing the specific question of whether the test of ‘main contributing factor’ was satisfied. On the evidence overall, the Arbitrator’s decision that the worker had not discharged her onus of establishing ‘main contributing factor’ was properly open.”
In Ms Hajjar’s case I have found she sustained a psychological injury in the course of her employment because of her reaction to the employer’s emails on 27 August 2021 referring to the mandatory need for teachers to be vaccinated. Had she not been employed as a teacher, I find she would not have had this reaction because there was no requirement in the general community to be vaccinated.
Mr Dodd’s alternate submission is that the emails on 27 August 2021 could be viewed as resulting in an injury under s 4(b)(i) and/or s 4(b)(ii). Often psychological injuries are viewed as a “disease” because the disease is contracted over a period of time. A clearer example of a s 4(a) psychological injury is the result of an armed hold-up to a bank employee, where one event causes the psychological injury. In Ms Hajjar’s case her psychological condition has evolved over time and so viewing her condition as a disease may be more apt. However, the reason why I have accepted there is a s 4(a) injury from the emails on 27 August 2021 is the force of Ms Hajjar’s reaction to that email from Georgina Harrisson. Ms Hajjar focuses on the “mandatory” requirement to be vaccinated and that has led to her focus on the deprivation of her liberty, with parts of her first statement in bold and underlined, which shows a disproportionately emotive response. She refers to at [13(o)] “reliving the traumatic event of receiving mandatory vaccination notice on 27^th August 2021” when she opens emails from the Department.
In terms of a s 11A defence to this injury, the respondent has submitted that this email was part of the disciplinary process and its conduct in sending it to Ms Hajjar was reasonable.
I am not convinced it is part of a disciplinary process.
In Webb the Deputy President found at [102]:
“The fact that there was a potential for action with respect to discipline is not sufficient to establish that the action conducted by the respondent in calling the meeting and investigating the complaint could be categorised as disciplinary.”
In Webb reference was made to Northern New South Wales Local Health Network vHeggie[35] at [59] where Sackville AJA stated:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”
[35] [2013] NSWCA 255, Heggie.
In Webb at [109] it was stated:
“However, in my view, the above passages establish that some part of the process of the actions taken by or on behalf of the employer must have the characteristic of being disciplinary in nature. Each case must be determined on its own facts. In the present case, it is true that the respondent may have instigated a disciplinary process had the allegation been proved. However, in the circumstances where the actions taken by the respondent, that is, where the appellant was not being investigated about any breach of conduct or any blemish in his performance in the workplace, what may or may not eventuate cannot be relied upon to change the characterisation of the actions that did take place.”
The applicant in Webb pleaded that his psychological injury was due to one meeting where he was told of allegations concerning which the employer had an obligation to investigate. At [118] the Deputy President in Webb said the Arbitrator erred by taking into account the possibility of disciplinary action, which had not occurred in characterising the action which did occur.
While I acknowledge the fact sensitive nature of particularly psychological injury cases, and the facts are different in Ms Hajjar’s case to Webb, it strikes me that the respondent’s actions on 27 August 2021 cannot be viewed as “with respect to discipline” when you examine that email from Georgina Harrisson.
Ms Hajjar at this point in time was not being investigated. She had not been threatened with disciplinary action. At this point in time, while she may have been worried about the effect on her employment, the respondent had not actually threatened her employment.
The email, which I have set out above does not have the tone of discipline. Nowhere are the consequences of not being vaccinated mentioned.
Heggie states one needs to consider the objective state of knowledge at the relevant time. The Department was conveying information to give a heads up to staff, to convey what was believed would be announced later that morning by the Premier.
In summary, I have found that Ms Hajjar did sustain a psychological injury as a result of the email on 27 August 2021 and she has satisfied the requirements of s 9A. I have also found the respondent has not established that this email was part of “discipline”. The fact that the email uses the word mandatory does not in my view make it with respect to discipline.
If I am in error and it is found that the email was part of disciplinary process, then I find it was reasonable. The Department, from an objective viewpoint, was conveying information in a fast moving, unprecedented situation. In Irwin v Director General of Education [36] Judge Geraghty stated:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[36] Compensation Court of NSW, 18 June 1998, No 14068 (unreported), Irwin.
In Van Vliet v Landscape Enterprises Pty Ltd[37] at [179] the President, His Honour Judge Phillips, stated that “[t]he concept of reasonableness in s11A does not, with respect, require a counsel of perfection. It requires, consistent with the authorities (Heggie, Irwin) that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.”
[37] [2022] NSWPIC PD 49, Van Vliet.
The respondent referred to Van Vliet and submitted that the world was undertaking a process of dealing with the COVID-19 phenomenon. It submits that you cannot just consider
Ms Hajjar’s evidence that her world had changed, you have to consider the situation in which the respondent was operating. I find that the respondent by sending this email was acting to inform staff as to what would be the situation with teachers. That is reasonable conduct. The fact that the Department referred to “mandatory” vaccination of teachers was, with the benefit of hindsight, unfortunate phraseology because the Public Health Order when it was later issued did not require teachers to be vaccinated, just that they could not attend at a school if they were unvaccinated. However, when you read the whole email, while not perfect, its tone and content when viewed objectively in my view was reasonable.
If, however, Ms Hajjar’s injury is to be regarded as a disease or aggravation of her prior psychological disease I consider it is necessary to look at all the events, including the disciplinary process conducted by the PES, as contributing to her contracting a psychological injury if s 4(b) (i) injury. I find there is insufficient support for a s 4(b)(ii) injury because while she was being treated before 27 August 2021 in relation to psychological symptoms none of the doctors really suggest this prior condition was aggravated. Dr Rastogi is the only doctor who really considers this earlier illness and as I have found earlier seems to have dealt with it as making Ms Hajjar more vulnerable. The test I need to apply under s 4(b) (i) of the 1987 Act is whether her employment is the main contributing factor to her contracting the disease. I am satisfied she has established this. I have explained earlier why I do not accept the respondent’s overarching submission that Ms Hajjar was reacting to the Government’s Public Health Order as opposed to the actions by the employer. Therefore, I find the causes of her psychological injury, if viewed as a disease, are all work-related turning on her employment as a teacher. Therefore, I find that her employment was the main contributing factor to her contracting the disease.
The reason why, if one regards her injury as a “disease”, I consider you need to focus on events not confined to 27 August 2021 is because she did keep working until she took sick leave on 5 November 2021 and in her statements she refers to the effect of the actions of the PES investigating her.
Dealing with the respondent’s defence under s 11A, I find it is necessary to look at all of its conduct during the period she contracted the disease.
This included the Department’s email on 2 September 2021 which I have found above was not disciplinary in nature as it provided information. I also find it was reasonable for the Department to send this email.
However, the NSW Department of Education COVID-19 Vaccination Guidelines of
5 October 2021 include the following provisions:
“8.8 if staff are found to be, or suspected of being, in breach of the Public Health Order NSW Police will be called and infringement notices or criminal charges may be laid.
8.9 If staff are found to be, or suspected of being in breach of these guidelines, then investigation and disciplinary action may be undertaken by the department, including termination of employment.”[38]
[38] Reply p 34.
Being unvaccinated was included in the definition of misconduct. I find this moved the actions of the respondent clearly into the realm of discipline. I consider this to be unreasonable.
Ms Hajjar was entitled not to get vaccinated. The consequence of this was as the Public Health Order stated she could not attend at a school. As to what the Department then did with teachers who could not attend at school, I find it was not necessary to accuse them of misconduct, rather the provisions of being stood down would have been reasonable conduct.
Furthermore, I find the PES letter dated 17 November 2021 was clearly with respect to discipline. It advised Ms Hajjar of allegations of misconduct and advised her that disciplinary action may be taken including her name could be placed on a list of persons not to be employed by the Department. Also, the letter from Mr Currie on 19 January 2022 and the further correspondence was also part of discipline.
The respondent has the onus of proof to establish a s 11A defence. It has to prove that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to discipline. I have found above that actions of the respondent that have predominantly caused the psychological injury were not part of discipline, such as the emails on 27 August 2021. So the respondent cannot establish the defence if the focus is on just that communication.
In the event I am wrong, and all the actions of the respondent were in respect to discipline, then it is necessary to consider all the actions in terms of reasonableness. I find it was the allegation of misconduct and the resultant actions by PES that made Ms Hajjar’s psychological injury worse.
The respondent arranged for Dr Abeya to examine Ms Hajjar on 12 December 2022.[39] The doctor took the history when she was told she was guilty of misconduct this “made the situation even more worse. She said she felt like a criminal…” Dr Abeya diagnosed a major depressive disorder with anxious distress. By the time of Dr Abeya’s 2023 report it was found Ms Hajjar had quite a significant functional decline with worsening symptoms of anxiety and depression.
[39] ARD p 62.
The respondent submits that by classing Ms Hajjar’s conduct as misconduct was reasonable, I do not agree. Mr Gaitanis also submitted that the process itself after this was reasonable noting such matters, as time was given to Ms Hajjar to respond and the PES reconsidered their decisions when circumstances changed and they moved Ms Hajjar from standing down without pay to working from home on alternate duties with pay. And then deciding to transfer her to another school because they believed it would be untenable for her to return to her prior school. Mr Gaitanis submits there was not a “blanket dismissal”, that the respondent did consider her individual circumstances.

I find that classing her conduct in refusing to be vaccinated as misconduct was unreasonable. The Department could have simply informed her that because of the Public Health Order she cannot attend the school premises and then they could have done what they later did and place her on alternate duties at home. I find the way the Department implemented the vaccine at this point was unreasonable even though up until then I have found they acted reasonably. In Heggie it is stated,
“The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.”
I find the respondent more likely than not believed it was acting in good faith to get as many teachers vaccinated as soon as possible however this is not enough to establish reasonableness under s 11A. I find that the respondent has not established a defence under s 11A.
Whether the injury comes under s 4(a) or s 4(b)(i), I find Ms Hajjar has established the necessary requirements in s 9A and “main contributing factor” respectively. On either scenario, but for different reasons I find the s 11A defence fails. I therefore find that Ms Hajjar is entitled to receive compensation for her injury.
I sought submissions in relation to the Court of Appeal’s decision in Dawking. The respondent’s submissions are that the Court of Appeal decision is limited to its own set of facts and narrow legal argument as to the adequacy of the decision of the Deputy President in terms of an acceptance or otherwise of the Member’s fact-finding mission and reasoning. There was no appeal in relation to the s11A finding. I accept the submission that I should not regard the Court of Appeal’s decision as a statement of general principle regarding ss4 and s9A. As I stated at the outset of these reasons each matter is fact sensitive. Therefore, I reject the submission of Ms Hajjar that I am bound by the Deputy President’s decision in Dawking.
Ms Hajjar also made additional submissions regarding the definition of discipline which refer to cases that is have cited in my reasons above. In the arbitration hearing Mr Dodd did submit the email of 27 August 2021 was not part of “discipline” but he did not refer to these authorities. In the respondent’s submissions at [23] it is noted that the further submissions were not sought by me. However, in [24] the respondent does respond by submitting that “discipline” is to be read broadly and is not relative simply to punitive measures. It is argued that the email of the respondent of 27 August 2021 provides a “framework” in relation to the mandated vaccination policy, that “is both a disciplined framework and is fundamental to the process in the event the requirements are not followed”. However, I have rejected that argument for the reasons set out above.

Weekly compensation

The claim made is pursuant to s 36 and s 37 of the 1987 Act on the basis of Ms Hajjar having no capacity for any employment from 9 November 2021 to date and ongoing. There is no dispute in relation to Ms Hajjar’s incapacity for employment. The PIAWE is agreed at $2,005.38, as indexed from time to time. However, I cannot perform the mathematical calculation because the wages schedule filed by Ms Hajjar’s solicitor in the late documents is not adequate. He has not put in the earnings that Ms Hajjar received from the respondent in the periods in question. For instance, Mr Currie stated she was to receive full pay from
13 May 2022.
Therefore I have made the orders in the following terms. The respondent is to pay the applicant weekly benefits compensation as follows:
(a) from 9 November 2021 to 7 February 2022 pursuant to s 36(1) of the 1987 Act;
(b) from 8 February 2022 to date and continuing pursuant to s 37(1) of the 1987 Act, and
(c) the rates payable in (a) and (b) above are to be calculated on the basis of the agreed PIAWE figure of $2,005.38, as indexed from time to time.
The respondent is to have credit for payments made in the above periods.

[BG1]Check different on heading above

[2024] NSWPIC 159

2 April 2024