Lancaster v City of Sydney Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Lancaster v City of Sydney Council [2022] NSWPIC 484
APPLICANT:	Stephen Lancaster
RESPONDENT:	City of Sydney Council
Member:	John Isaksen
DATE OF DECISION:	30 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses due to psychological injury; respondent relies upon section 11A defence of the Workers Compensation Act 1987 that injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to the provision of employment benefits; whether being able to work despite not being properly vaccinated against covid 19 is a right or a benefit; reference to Kassam v Hazzard; Henry v Hazzard on the ‘right to work’ and the ‘right to earn a living’; whether action taken by the respondent with respect to the provision of an employment benefit was reasonable; reference to Irwin v Director General of School Education and Northern NSW Local Health Network v Heggie; Held — no common law principle of the ‘right to work’; allowing the worker to work while not vaccinated was an employment benefit; action taken by the respondent not reasonable with respect to the provision of the employment benefit of allowing the worker to work while not vaccinated; award of weekly payments of compensation for total incapacity and the payment of medical expenses.
determinations made:	The Commission determines: 1. The applicant sustained a psychological injury in the course of his employment with the respondent with a deemed date of injury of 28 January 2022. 2. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987. 3. The applicant has had no current work capacity from 28 January 2022. The Commission orders: 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $1,311.04 per week from 28 January 2022 to 28 April 2022 pursuant to section 36 (1) of the Workers Compensation Act 1987; and (b) $1,104.03 per week from 29 April 2022 to date and continuing pursuant to section 37 (1) of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Stephen Lancaster, commenced employment with the respondent, City of Sydney Council, as a turf manager and greenkeeper in 2018.
The applicant claims that he sustained a psychological injury in the course of his employment with the respondent as a result of bullying and harassment by officers of the respondent in their implementation of a vaccination policy due to the coronavirus pandemic.
The applicant ceased work due to his psychological injury on 28 January 2022 and has not worked since.
The applicant claims that he has had no current work capacity as a result of his psychological injury since 28 January 2022.
The respondent concedes that the applicant did sustain a psychological injury in the course of his employment with the respondent. The respondent has provided no evidence to dispute the claim made by the applicant that he has been totally incapacitated for work since 28 January 2022.
However, the respondent disputes liability on the grounds that the psychological injury sustained by the applicant has been wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to the provision of employment benefits.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to the provision of employment benefits (section 11A of the Workers Compensation Act 1987 (the 1987 Act)).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 23 June 2022. 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.
Mr Tanner appeared for the applicant, instructed by Mr Tohme. Mr Carney appeared for the respondent, instructed by Mr Forster.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,380.04.
The Application to Resolve a Dispute (ARD) was amended by Mr Tanner to nominate the date of injury as 28 January 2022, and to claim weekly payments of compensation from 28 January 2022. Those amendments were not opposed by the respondent.
The hearing was conducted by video in accordance with the protocols set out by the Personal Injury Commission (the Commission) due to the coronavirus pandemic.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents; and
(b) Reply and attached documents.

Oral Evidence

There was no application to cross examine or adduce oral evidence from the applicant or any other witnesses who have provided statements in this dispute.

The applicant’s evidence

The applicant has provided statements dated 28 February 2022 and 24 March 2022.
The applicant states that during the week of 26 August 2021 he was informed by the respondent that he needed to have a covid vaccination to attend work the following week. He states that he obtained an exemption from vaccination for one year from his local doctor and provided that to the respondent. The “Covid-19 Vaccine Medical Contraindication” form dated 26 August 2021 from Dr Sebez is included in the ARD, and Dr Sebez has stated in that form that the medical condition requiring temporary vaccine exemption is: “Hx of PTSD/poor mental health at present with severe anxiety and panic attacks”.
The applicant states that on 6 September 2021 he was called to a meeting and was told he had to get a new exemption because the exemption period in the NSW Health form had changed to six months. He states that he replied that the one year exemption should stand, and the following day his supervisor told him that the exemption was good for a year after his supervisor had consulted HR.
The applicant states that he took annual leave from 25 December 2021 to 14 January 2022, and he was due to return to work on 17 January 2022. He states that on 12 January 2022, and while still on annual leave, he received a phone call from
BAZ at HR regarding an updated certificate to be obtained from his doctor. He states that he asked BAZ why his current exemption was not valid, and BAZ offered no explanation to this enquiry.
The applicant received an email on that same day from BAZ which included the following:
“Thanks for taking my call whilst you were on leave.
I did not want to disturb your leave, however we had to update you on the changes to the internal processes at the City in relation to Covid -19 contraindication certificates.
As you are aware the City adopted the Covid Safe Workplace Policy effective 14 December 2021. The City has had to adapt and change as Covid has evolved, as have our related processes.
As your medical contraindication does not meet the current requirements you cannot attend the workplace as of Monday 17 January 2022 until you have:
· Your Doctor complete the updated version of the contraindication form attached
· You have had a discussion with the WHS team about your medical condition and what reasonable adjustments can be made to enable you to be in the workplace.
The City can provide Covid Special Leave next week whilst you arrange to meet with your Doctor.
After that you will be required to use your own leave accruals until you supply the new contraindication certificate.”
The applicant sent an email less than 30 minutes later to BAZ wherein he stated that he saw no reason why his medical contraindication did not meet the current requirements and stated that: “You need to honour the email dated 6 September 2021”. The applicant states in his second statement that he does not recall receiving the email of 6 September 2021, but that it could be in his emails at work, to which he currently does not have access.
The applicant sent a further email to BAZ on 17 January 2022 asking why his medical contraindication did not meet the respondent’s current requirements.
BAZ responded that same day stating that the Work Health Safety team was managing all medical contraindication cases and that they had all documentation and letters on file.
The applicant sent a further email to BAZ on 19 January 2022 advising that WHS had yet to contact him and that he did not have any contact number or email address for the relevant person in WHS. BAZ responded that same day advising that the applicant would receive a letter from BBE from HR “in the coming days”, and attached the new version of the medical contraindication certificate for his doctor to complete.
The applicant obtained a new medical contraindication certificate from Dr Sebez on 24 January 2022 and sent it to WHS. The exemption was for a six month period, being the maximum period now provided in the form created by NSW Health. BAZ sent an email to the applicant on 24 January wherein she noted that she understood that the applicant had sent the new medical contraindication certificate to WHS and stated that the next steps would be:
“· WHS will review and the City will decide what reasonable adjustments can be made, if any, to accommodate you in the workplace.
· This may require more information from your Doctor, which can be done via telehealth.
· Please remain out of the workplace until you have been contacted and a reasonable adjustment plan has been discussed.”
BAZ also wrote: “I understand this may be a difficult time and I encourage you to use our free counselling service.”
The applicant states that he received no response from WHS until he received an email from BBE on 28 January 2022. The email is time stamped at 5.53pm on a Friday. BBE thanked the applicant for forwarding his medical contraindication certificate and attaching a letter which explained the next steps in the medical exemption workplace verification process. BBE referred to using information that was to be provided by Dr Sebez to determine a reasonable adjustment plan during the applicant’s temporary exemption.
The letter attached to the email from BBE is included in the Reply. It asks the applicant to meet with Dr Sebez and ask that Dr Sebez complete information in a form provided by the respondent.
The applicant states that he had a telephone conversation with BAZ on 28 January 2022. He states that BAZ said that his exemption was not a good enough excuse not to be vaccinated. He also states that BAZ said to him: “We would be looking at getting you counselled, with a view of getting vaccinated”. He states that he was stunned and shocked by what BAZ said and concluded that the respondent wanted him to be vaccinated “at all costs”.
The applicant also states that during his telephone conversation with BAZ on 28 January 2022 she said that he may have to wear a mask at work, and he asked why he should wear a mask when vaccinated people are contracting and spreading the virus as well. He states that BAZ’s response was: “I am not a doctor”.
The applicant states:
“I do not understand why they changed their story to me when my exemption was initially accepted. These events caused me severe stress and anxiety. Whenever I have to deal with my workplace now, I get panic attacks.
I feel like my employer has left me in the dark and has not communicated with me properly. I feel like they have completely abandoned me.
I have not received a proper explanation as to why HR, WHS or my supervisor do not find my original medical exemption to be valid.”
The applicant also states that he “was never given full consultation” about the Covid Workplace Policy dated 14 December 2021.

Other lay evidence

BAZ has provided a statement dated 9 March 2022. BAZ states that she has been employed as HR Business Partner with the respondent since September 2019.
BAZ states that she has was aware of a medical contraindication certificate provided by the applicant dated 6 August 2021. She states that there was a meeting on 6 September 2021 between the applicant, his team leader Justin Caldwell, and the Acting Parks Operations Manager Jeff Duncan, to discuss an updated health order, an updated contraindication form, and an extension of the vaccination deadline. She states that on 29 August 2021 NSW Health had issued a public health order that authorised workers were to have had at least one covid vaccine dose by 9 September 2021.
The applicant states that she sent an email to the applicant on 6 September 2021 to advise him that the respondent would allow him to come back to work and accept his current contraindication form. She states that she has provided a copy of that email to the applicant, although I could not locate that email in the ARD or Reply.
There is an email from BAZ to Jeff Duncum and Justin Caldwell on 6 September 2021 which states:
“Steve’s Medical Contraindication Form Is valid for the next 12 months
Steve can come back to work unvaccinated for the next 12 months as per his Medical Contraindication Form
The above information is valid unless the public Health order change.
Steve needs to understand that Public Health Orders may and do change, we can’t control or have oversight of this.”
BAZ states that the respondent introduced its Covid Worksafe Policy on 14 December 2021, which required all employees to be double vaccinated by 14 January 2022. BAZ states: “To my knowledge, Stephen was made aware of the policy by way of full consultation between Council management and its entire workforce”.
BAZ states that on 12 January 2022 she telephoned the applicant while he was on leave to advise him that the Covid Worksafe Policy was to come into effect on 14 January 2022 and that he could not attend the workplace until his doctor had completed an updated version of the contraindication form. She states that she also advised the applicant that he would need to discuss with the Work Health and Safety team what reasonable adjustments could be made to enable him to enter the workplace if he was not vaccinated.
BAZ states that there was a review conducted of all unvaccinated staff, including those with a medical contraindication certificate, when the Covid Worksafe Policy came into effect on 14 January 2022. She states that the applicant would be contacted by WHS because anxiety and post-traumatic stress disorder were not considered valid reasons to remain unvaccinated.
BAZ states that on 24 January 2022 she sent an email to the applicant which provided an email address for WHS and the next steps in the process. She states that on 28 January 2022 she sent an email to the applicant to advise that additional covid special leave had been approved until 4 February 2022.
BAZ states that she never said to the applicant that his contraindication exemption was no excuse for not getting vaccinated, or that the respondent would need the applicant to be sent to counselling with a view to having him vaccinated. She states that she has had conversations with employees who have been anxious about getting the covid vaccine and has advised them to speak their doctor, but she cannot recall speaking to the applicant about that. She states that she has never provided medical advice to the applicant regarding vaccination.
BBE has provided a statement dated 10 March 2022. BBE states that she has been employed as Work Health Safety Business Partner with the respondent since 2019.
BBE states that her only communication with the applicant was an email she received from the applicant on 24 January 2022 and an email she sent to the applicant on 28 January 2022. She states that her email made no reference to the applicant requiring counselling and her wording did not compel the applicant to get vaccinated.
The “Covid Safe Workplace Policy” of the respondent dated 10 December 2021 is included in the Reply. The document states that all workers for the respondent are to be fully vaccinated with a covid 19 vaccine by 14 January 2022. The policy provides for temporary exemption from covid vaccination on a case by case basis. The policy states:
“The assessment for temporary exemptions will be conducted in consultation with the worker’s manager, Corporate Human Resources and Work Health and Safety. The assessment will be based on the worker’s normal role. Where temporary exemptions are approved, the length of the exemption will be allocated, and the worker must comply with additional controls including but not limited to regular Covid-19 testing at their own expense and the use of designated Personal Protective Equipment (PPE).
Once the temporary exemption has concluded or if the temporary exemption is not approved, workers who choose not to be vaccinated will be advised of the implications, which are likely to include that their on-going employment with the City is at risk.”
Elizabeth Lancaster has provided a statement dated 24 March 2022. Ms Lancaster is the wife of the applicant.
Ms Lancaster states that on 12 January 2022 her husband received a phone call “out of the blue” from the respondent. She states that the applicant was very upset because BAZ from the respondent had told the applicant that his exemption was no longer valid.
Ms Lancaster states that she was next to her husband on 28 January 2022 when he received another phone call from BAZ. She states that BAZ told the applicant that his exemptions were not good enough for the applicant not to get vaccinated, and that the respondent would be looking at giving the applicant counselling with a view to getting him vaccinated.
Ms Lancaster states that her husband was very distressed following this phone call. She states that she rarely saw the applicant get distressed and that he does not usually get easily upset about things.

The medical evidence

The respondent concedes that the applicant did sustain a psychological injury in the course of his employment with the respondent.
Dr Khan, consultant psychiatrist, has provided a report at the request of the applicant’s solicitors dated 3 March 2022. Dr Khan has provided the following opinion in regard to the defence raised by the respondent pursuant to section 11A of the 1987 Act:
“Mr Lancaster’s employer, City of Sydney Council, instated a mandatory COVID-19 vaccination policy for all employees in August 2021. Mr Lancaster was anxious about receiving the vaccinations and he followed up with his general practitioner and obtained an exemption for the vaccination for one year as per his employer’s request. Mr Lancaster was able to continue working until he was told to have a new form completed by his general practitioner that would only allow an exemption for the vaccination for up to six months. He raised his concerns about the sudden change of policy and he was able to continue working until the HR manager pressured him to have the new form signed and expressed an intention to send him to counselling to change his mind to obtain the vaccinations. Mr Lancaster complied with the request of his employer. He was then asked to have his general practitioner complete a series of questions. He felt unreasonably pressured, harassed, unsupported, ignored and dismissed by his employer, which ultimately caused his mental state to deteriorate.”

FINDINGS AND REASONS

The section 11A defence

The respondent contends that the applicant’s psychological injury has been wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to the provision of employment benefits, and that, pursuant to section 11A (1) of the 1987 Act, no compensation is payable to the applicant.

Section 11A (1) of the 1987 Act provides:
“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.”
An initial issue for determination is whether the actions taken by the respondent were made with respect to the provision of employment benefits.
I could not locate, nor was I referred to, any Presidential decisions which address the definition of ‘provision of employment benefits’ in section 11A. The Macquarie Dictionary describes the noun of ‘benefit’ as an act of kindness or anything that is for the good of a person. The Collins Dictionary describes a benefit as the help that is gained from something or the advantage which results from something.
Mr Carney for the respondent submits that the employment benefit that is provided by the respondent to the applicant is the advantage of the applicant being able to work when he was not vaccinated. That is a benefit being afforded to the applicant having regard to the prevailing circumstances where covid 19 is a substantial health risk to the community.
Mr Tanner for the applicant draws a distinction between benefits and rights within a contract of employment. He submits that working and earning a salary are not benefits but instead are rights which the applicant has, and that the applicant has been prevented from working and earning a salary by the respondent.
The claim of a ‘right to work’ was made by several plaintiffs in proceedings which reached the Court of Appeal in the decision of Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 (Kassam; Henry). The Court of Appeal was presented with various arguments as to why an employee should be allowed to continue to work despite an employer’s requirement that the employee be properly vaccinated against covid 19. One of those arguments was whether a person has the right to work or a right to earn a living.
President Bell addressed the claim of a ‘right to work’ or a ‘right to earn a living’ at [100-104] and said:
“100 By way of contrast to the right to bodily integrity, the existence of a common law “right to earn a living” or a “right to work” is far more problematic, although it is powerful rhetorical refrain. The use of such a refrain, however, is not the same as a right recognised by the common law, still less a right or value of a “fundamental” character apt to attract and engage the principle of legality. The primary judge held that “the common law has refused to recognise a ‘right’ in those terms”: PJ [199].
101 Such a right was asserted by the Henry Parties to have been accepted by O’Connor J in The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Company Proprietary Limited[1910] HCA 28; (1910) 10 CLR 457 at 464; [1910] HCA 28, who said that “every citizen is at liberty prima facie to carry on his business in his own way within the law” (emphasis added). The words “prima facie” and “within the law” heavily qualify any assistance which this observation provided to the Henry Parties, and the citation of this decision by Warren CJ in WBM v Chief Commissioner of Police (2012) 43 VR 446;[2012] VSCA 159 at [83] does not advance the matter.
102 Far more apposite, in my view, is the observation of Barwick CJ in Forbes v New South Wales Trotting Club Limited [1979] HCA 27; (1979) 143 CLR 242 at 260-261; [1979] HCA 27, that:
“To convert the doctrine that ... there should be no unreasonable restraint on employment into a doctrine that every man has a ‘right to work’, is, in my opinion, to depart radically from ... the common law ... It is in the public interest that a man should be able to exercise his capacity to work. The law does not enforce a right to exercise that capacity: it does no more than remove the unreasonable impediment upon its exercise.”
This passage was cited with approval in Hepples v The Commissioner of Taxation of the Commonwealth of Australia[1992] HCA 3; (1992) 173 CLR 492 at 502; [1992] HCA 3, and by this Court in Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 346 (Curro).
103 As explained in JD Heydon, The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths) at 88, the “right to work” mentioned in some cases, of which Nagle v Feilden[1966] 2 QB 633 is the most well-known, is “not a positive right, but a liberty which is not to be unreasonably impeded”. That is entirely consistent with what this Court said in Curro.
104 The primary judge was correct to conclude that there was and is no common law “right to work” in any strict sense which would engage the principle of legality. For this reason, to the extent that people’s ability to work was directly or indirectly affected by the Impugned Orders, they were not invalid by reason of the operation of the principle of legality.”
It follows that the applicant does not have a right to work or a right to earn a living from his employment with the respondent. I agree with the submission made by Mr Carney that the action taken by the respondent involves an employment benefit because the applicant is seeking a benefit or advantage in being able to continue to work for the respondent while he is not vaccinated. The applicant is being given the benefit of an exemption to a policy instituted by the respondent that all employees are to be fully vaccinated against the covid 19 virus.
The crucial issue in this dispute then becomes whether the action taken by the respondent with respect to the provision of an employment benefit, namely being allowed to work while not vaccinated against the covid 19 virus, was reasonable. The decision of Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR (Heggie) involved the category of ‘discipline’ in section 11A, but the following observation made by AJA Sackville at [59] would apply to all categories in section 11A:
“Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed.”
Mr Tanner confirmed that the applicant does not contend that the Covid Safe Workplace Policy instituted by the respondent was not reasonable. It is the applicant’s submission that it was the action taken in regard to that policy which was not reasonable. That action included the following:
(a)    the respondent accepting that the applicant had a valid exemption for a period of 12 months, but then changing that exemption to six months;
(b)    not informing the applicant at any time after 2 September 2021 that a new form was needed from his doctor, when NSW Health had changed the medical contraindication form from an exemption period of 12 months to six months;
(c)    stopping the applicant from returning to work on 17 January 2022 despite the applicant having at the very least an exemption until 26 February 2022 (which was based upon the medical contraindication form issued by NSW Health having changed in September 2021 from an exemption period from 12 months to six months);
(d)    not informing or consulting with the applicant regarding the Covid Safe Workplace Policy which was introduced on 14 December 2021, and which was to apply to all employees by 14 January 2022;
(e)    contacting the applicant regarding the new policy requirements while he was on annual leave;
(f)    not properly explaining to the applicant as to why he could not continue to rely upon the exemption he obtained in August 2021 and that additional information was now required from his doctor; and
(g)    placing pressure upon the applicant to get vaccinated, including a direction to undertake counselling.
Mr Carney submits that the respondent acted in a reasonable way in an environment where a new policy had been introduced and where the respondent needed to have more information from Dr Sebez as to what the applicant’s health condition meant in regard to adjusting the workplace so that the applicant could return to work. He submits that the applicant failed to comprehend that the change in policy meant that the applicant had further obligations to meet before he could return to the workplace.
In Irwin v Director General of School Education, NSWCC no.14068/97 (18 June 1998, unreported) (Irwin), Geraghty CCJ said:
“The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of an employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
The applicant states that he was informed at a meeting on 6 September 2021 that the NSW Health form had changed the exemption period from 12 months to 6 months. Nonetheless, the following day he was informed by his supervisor that his exemption from vaccination was good for 12 months.
There is no evidence that between 7 September 2021 and 24 December 2021 the applicant was advised that he had to obtain further material from his doctor, including a six month exemption from vaccination, for him to continue to work for the respondent.
There is no evidence that between the introduction of the Covid Safe Workplace Policy on 14 December 2021 and the applicant stopping work to go on annual leave on 24 December 2021, that the applicant was informed of the requirements of the new policy.
The applicant states that he was never given “full consultation” about the new policy. BAZ states that “to my knowledge” the applicant was made aware of the policy because there was full consultation between Council management and its entire workforce. However, BAZ does not provide any evidence as to how she reaches this conclusion. Was there a meeting with employees, including the applicant, to inform them of the new policy? Was a copy of the policy sent to the applicant by email or letter at or soon after the introduction of the policy on 14 December 2021? There is no evidence from the respondent in regard to this.
There is also no evidence from the applicant’s team leader Justin Caldwell, or the Acting Parks Operations Manager Jeff Duncum, of the applicant being made aware of the new policy. That is despite the email sent by BAZ to Mr Duncum and
Mr Caldwell on 6 September 2021 wherein she states: “Steve needs to understand that Public Health Orders may and do change, we can’t control or have oversight of this”.
The Covid Safe Workplace Policy is distinct from a Public Health Order, but the email from BAZ to Mr Caldwell and Mr Duncum emphasises the need to inform the applicant of events which might cause a change in how the respondent is to manage its employees in response to the coronavirus pandemic.
That there was no consultation with the applicant when the new policy was introduced on 14 December 2021 is reinforced by evidence from BAZ. BAZ states that “a review was conducted of all unvaccinated staff including those with a medical contraindication certificate” when the Covid Safe Workplace Policy came into effect on 14 January 2022. BAZ does not state that such a review was conducted upon the introduction of the policy on 14 December 2021. It would appear from this evidence that no attempts had been made in the month prior to the policy coming into effect to consult with those employees who were not vaccinated, including the applicant.
I would accept that the 11 days between the introduction of the Covid Safe Workplace Policy and the start of the Christmas/New Year period would have been very busy for managerial staff employed by the respondent. It was also a time when there was a substantial increase in covid infections due to the opening up of business and the virulence of the Omnicron strain. It was a time of stress and uncertainty for many people.
However, there is no evidence from anyone from the respondent that there was such a heavy workload at that time, or that events in regard to the coronavirus pandemic were moving so fast, that there was no one who was able to inform the applicant soon after the Covid Safe Workplace Policy was introduced of the new obligations he had to meet. Such evidence might have weighed in favour of the respondent doing its best in the circumstances to meet its objective of ensuring that employees who were not vaccinated were made aware of new requirements to allow such employees to continue to work.
From my review of the evidence, I conclude that when the applicant stopped work to take his annual leave on 24 December 2021, he was under a reasonable belief that he had an exemption from covid vaccination up until 26 August 2022, and there was nothing to disabuse him of this belief. I accept the complaint made by the applicant that he was “left…in the dark” and that the respondent did not communicate with him properly.
The action, or lack of effective action, taken by officers on behalf of the respondent which I have referred to up until 24 December 2021 with respect to the employment benefit that had been provided to the applicant to allow him to work while still not vaccinated, cannot therefore be regarded as being reasonable.
The unreasonable action taken by the respondent with respect to the provision of the benefit of allowing the applicant to continue to work while still not vaccinated was compounded by events which occurred between 12 January and 28 January 2022.
There is no evidence from the applicant, Ms Lancaster or BAZ as to the time of day that BAZ made the phone call to the applicant on 12 January 2022. However, the subsequent email from BAZ is recorded as being sent at 4.46 pm, and the applicant provided a prompt response at 5.08pm.
It appears then that the applicant acted promptly to enquire further from BAZ as to why his previous exemption was no longer acceptable. It also meant that the applicant had only two working days to obtain an updated medical contraindication from his doctor and liaise with the WHS team before he was due to start work.
The applicant does not specifically complain about this short time frame he was faced with. Nor does he offer any explanation as to why it took another 12 days to obtain the up to date form from Dr Sebez, when the previous year he was able to obtain a completed form within a few days.
However, I accept that the applicant became distressed from the message that was delivered to him on 12 January and that he became increasingly stressed by not being able to return to work and the uncertainty of his employment situation because of the follow up emails he sent to BAZ on 17 January, 19 January and 24 January.
BAZ replied on 19 January that the applicant would receive a letter from WHS “in the coming days” after the applicant informed her that he had yet to be contacted by WHS. However, the first correspondence from BBE at WHS was not until an email on 28 January 2022, and that was at 5.53pm on a Friday.
BAZ states that covid special leave was approved for the applicant for another week until 4 February, so that the applicant had yet to lose any of his other leave entitlements. It might also be that BBE did not appreciate the concerns the applicant had, especially as she made no direct contact with him until 28 January, and that she considered the time frame during which she did respond to the applicant was acceptable.
However, the uncertainty for the applicant as to if or when he would be able to return to work had now been going on for two and a half weeks by the time BBE sent her email to the applicant. It was another period in which the applicant felt “left…in the dark” and where officers of the respondent were not properly communicating with him.
The applicant also states that during the telephone conversation he had with BAZ on 12 January 2022 he asked BAZ why his current exemption was not valid, and BAZ offered no explanation to this enquiry. BAZ does not refer to this at all in her statement.
I accept that this enquiry was made by the applicant because he makes the same enquiry in his email on that same day and there is no immediate response from
BAZ. When the applicant enquires again in his email on 17 January, the response from BAZ is that the “WHS team are managing all the medical contraindication cases”. I therefore accept the complaint made by the applicant that no reasonable explanation was provided by the respondent as to why he could not continue to rely upon the medical contraindication form.
There were other events which, from my review of the evidence, do not amount to unreasonable action taken by the respondent with respect to the benefit of allowing the applicant to work while still not vaccinated.
I agree that a worker is entitled to quiet enjoyment while on annual leave and should not be contacted by his or employer while on leave. However, the applicant does not complain about this in his own evidence.
I am also unable to draw a conclusion from the evidence as to whether the applicant was told by BAZ that the respondent was wanting the applicant to attend counselling so that he could be vaccinated. BAZ denies this. There is also no reference to this in the four emails sent by BAZ during the month of January.
Furthermore, BAZ does not state that she had a telephone conversation with the applicant on 28 January, which is the date nominated by both the applicant and his wife of when the conversation occurred. By that time the issue of the applicant’s return to work was being handled by BBE.
I am wary of the evidence provided by Ms Lancaster on this issue because she does not state how she was able to listen in to the conversation between her husband and BAZ. It might also be that the applicant was confused by a reference at some stage to counselling by BAZ because, as was submitted by Mr Carney, supportive counselling is often provided by large scale employers such as the respondent and it is referred to in the email from BAZ on 24 January 2022.
However, from my review of the evidence, I am satisfied that there was a failure by the respondent to properly communicate and consult with the applicant in regard to the benefit of being allowed to work while still not vaccinated between September 2021 and 28 January 2022, and especially in the period from the introduction of the Covid Safe Workplace Policy on 14 December 2021 until 28 January 2022.
Furthermore, there was a failure by the respondent between 12 January and 28 January 2022 to properly explain to the applicant why the exemption that had been provided to him was no longer acceptable.
The failure by the respondent to properly communicate and consult with the applicant, and to provide a proper explanation to a reasonable enquiry made by the applicant, did not reach an objective level of fairness that is referred to by Geraghty CCJ in Irwin. The action that was taken by the respondent led the applicant to feel “unsupported, ignored and dismissed” by the respondent, which were factors identified by Dr Khan to have caused the applicant’s mental state to deteriorate.
I am therefore not satisfied that reasonable action was taken by the respondent with respect to the employment benefit of allowing the applicant to work while not vaccinated against covid 19, and accordingly the section 11A defence must fail.

Orders for compensation

The respondent has provided no evidence to dispute the claim made by the applicant that he has been totally incapacitated for work since 28 January 2022.
The applicant has not received any weekly payments of compensation to date.
Ninety five per cent of PIAWE is $1,311.04. Eighty per cent of PIAWE is $1,104.03.
There will be an award in favour of the weekly payments of compensation as follows:
(a) $1,311.04 per week from 28 January 2022 to 28 April 2022 pursuant to section 36 (1) of the 1987 Act; and
(b) $1,104.03 per week from 29 April 2022 to date and continuing pursuant to section 37 (1) of the 1987 Act.

There will also be an order that the respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the 1987 Act.

[2022] NSWPIC 484

30 June 2022