Martsoukos v Secretary, Department of Education - [2024] NSWPICPD 85

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Martsoukos v Secretary, Department of Education [2024] NSWPICPD 85
APPELLANT:	Evgenia Martsoukos
RESPONDENT:	Secretary, Department of Education
INSURER:	Allianz – TMF
FILE NUMBER:	A1-W6248/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	17 December 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 11 January 2024 is revoked. 2. The matter is remitted to another Member for hearing and determination in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – psychological injury – COVID-19 vaccine mandate – whether email communications regarding the COVID-19 vaccine mandate constitute disciplinary action to establish a defence under section 11A of the Workers Compensation Act 1987 – Teaching Services Act 1980 – clause 6(a) of the Education Teaching Service Regulation 2001 – Secretary, Department of Education v Uzunovska [2024] NSWPICPD 19 considered and applied – Boyd v Secretary, Department of Education [2024] NSWPICPD 79 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Dodd, counsel
McCabe Partners Lawyers
Respondent:
Mr S Grant, counsel
Hall & Wilcox Lawyers
DECISION UNDER APPEAL:	Martsoukos v Secretary, Department of Education [2024] NSWPIC 16
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	11 January 2024

INTRODUCTION

During the COVID-19 pandemic in 2021, the NSW Government required its school-based staff to receive two COVID-19 vaccinations in order to continue working. On 27 August 2021 and 2 September 2021, the Department of Education (the respondent) sent emails to all school staff notifying them of the vaccination mandates. Ms Evgenia Martsoukos (the appellant), who was employed by the respondent as a full-time teacher, claimed to have developed a psychological injury on 27 August 2021 arising from receiving this email informing her about the implementation of this mandatory requirement.
There was no dispute the appellant sustained a psychological injury on 27 August 2021 following receipt of emails from the respondent, however the respondent’s defence was that the injury was wholly or predominantly caused by its reasonable actions pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act), arguing that the emails on 27 August 2021 and 2 September 2021 were of a disciplinary nature. In proceedings before the Personal Injury Commission (the Commission), Member Wynyard determined that the injury to the appellant was predominantly caused by reasonable actions taken by the respondent regarding discipline. It is from that decision the appellant appeals.

BACKGROUND

The appellant commenced employment with the respondent in 1994, initially as a casual teacher before gaining full-time employment at James Meehan High School teaching English/History to disadvantaged students with low socio-economic backgrounds.[1]
[1] Application to Resolve a Dispute (ARD), p 16. (Statements in the Reply record that the appellant commenced employment in 1997 however it is immaterial as to whether the commencement date was in 1994 or 1997.)
Prior to the psychological injury on 27 August 2021, the appellant had a modest history of symptoms of anxiety, trauma, bullying and harassment, however this was not a point of contention between the parties.[2]
[2] Transcript of Proceedings dated 22 December 2023 (T), T 7.8–8.2.
On 27 August 2021, the respondent emailed all school-based staff advising that the Premier of NSW was expected to announce that they would require mandatory double doses of the COVID-19 vaccination from 8 November 2021. The appellant said she had a strong physical reaction to the announcement, and she was in shock.[3] The appellant sustained a psychological injury following receipt of the emails, which injury was not contested by the respondent.
[3] ARD, p 3.
On 3 November 2021 the appellant submitted a medical exemption document with the respondent, however this was rejected by the respondent on the basis that the practitioner was not registered.[4]
[4] Reply to Application to Resolve a Dispute (Reply), p 83.
The respondent issued several dispute notices denying liability of the appellant’s claim on account of various reasons,[5] however in its submissions before the Member, the respondent limited the dispute to the following issues; the respondent’s emails sent on 27 August 2021 and 2 September 2021 constituted action with respect to discipline under the provisions of s 11A of the 1987 Act, and the action was reasonable.[6]
[5] ARD, pp 120–136 and 141–145.
[6] T 1.33–38.

Respondent’s submissions

In its submissions to the Member, the respondent argued that the emails sent to school staff on 27 August 2021 and 2 September 2021 fell within the definition of “discipline” under the 1987 Act. In support of its submission, it referred to Webb v State of New South Wales[7] which considered the definition of ‘discipline’. The respondent argued that assessment of whether an action constitutes discipline requires looking at the whole process, in this case from the initial email dated 27 August 2021 to the cessation of employment.[8]
[7] [2019] NSWWCCPD 50 (Webb).
[8] T 1.38–2.24.
The respondent submitted that when looking at the whole of the circumstances, the appellant, who was a highly educated person, was aware that if she did not comply with the vaccine mandate there would be consequences, being that she would be prevented from teaching at school, and it is that prevention which encapsulates the definition of discipline.[9]
[9] T 19.9–18.
In support of its actions being reasonable, the respondent referred the Member to its s 78 notice where it states:
“As a teacher in the New South Wales public school system you are employed under the Teaching Services Act 1980 and you are also subject to the Education Teaching Services Regulation 2001”
And:
“[t]hese Acts provide that the protection of children is to be the paramount consideration in taking any action with respect to an employee and on this basis the Department has a responsibility to ensure children are protected from contracting Covid-19.”[10]
[10] T 9.7–9.24.
The respondent submitted that its paramount consideration under the Teaching Services Act 1980 (NSW) (1980 Act) and the Education Teaching Services Regulation 2001 (the Regulation) is the protection of children and thus it acted reasonably.[11]
[11] T 9.26-10.2.
The respondent also submitted that it did not have a choice in enforcing an order of the Government.[12]
[12] T 11.6–12.

Appellant’s submissions

The appellant submitted that Webb can be distinguished on its facts. The appellant argued that in respect of the worker’s conduct or performance in the workplace or arising out of the worker’s employment, there has to be some conduct or performance in the workplace which is then the subject of the actions of the employer involving discipline. However, there was nothing regarding the appellant’s conduct or performance in the workplace which led to the email, particularly of 27 August 2021, and on the face of the document itself, it failed to contain evidence that it was disciplinary in nature.[13]
[13] T 21.11–22.16.
The appellant rejected the respondent’s assertion that the vaccine was compulsory to all school staff and that a failure to comply would result in a prevention of teaching, as remote working was available to the appellant as she had done so for the 18 months prior. The appellant submitted that it was open for the respondent to adopt methodologies for the small percentage of teachers who did not wish to be vaccinated, such as remote learning, a suspension for a period of time or other curriculum work, which were never considered by the respondent.[14]
[14] T 26.15–28.14.
The appellant submitted that at the time of receiving the respondent’s email on 27 August 2021, when a physical reaction occurred, there was no indication of any disciplinary action.[15]
[15] T 32.5–10.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

THE EVIDENCE

The respondent’s emails

Two emails were sent on 27 August 2021 to all school-based staff by the respondent’s Secretary, Ms Georgina Harrisson. The first email, sent at 10:52 am,[16] which dealt solely with the vaccination issue, was as follows:
[16] AALD, p 10. There appears in the evidence at AALD p 13 a further copy of this email with a time stamp of 11:02 am, however the content of the emails is the same.
“From: Georgina Harrisson, Secretary
Sent: Friday, 27 August 2021 10:52 AM
To: Internal Communication
Subject: Mandatory vaccinations for school staff
To: All school-based staff CC: School Performance EDs, DELs, SPN SSSP Directors, Learning Improvement executive
What you need to know:
·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 also 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
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.
Georgina Harrisson
Secretary”
A second email was sent that same day, at 12:50 pm, again from the Secretary to all school-based staff, this time addressing the return to face-to-face teaching following learning from home.[17] This email again reiterated the vaccine mandate.
[17] AALD, p 15.
“From: Georgina Harrisson, Secretary
To: All staff
What you need to know:
·In the event stay-at-home rules are lifted in regional NSW before the end of Term 3, schools in those areas can expect to return to face-to-face teaching and learning at Level 3.
·From Monday 25 October, select cohorts under stay-at-home rules – starting with students in Kindergarten and Year 1 – will return to face-to face learning under Level 3 plus COVID-safe settings, as long as community transmission and vaccination rate requirements have been met.
·From Monday 1 November, students in Years 2, 6 and 11 will return to school sites under Level 3 plus settings.
·From Monday 8 November, students in Years 3, 4, 5, 7, 8, 9 and 10 return to school sites under Level 3 plus settings.
·Students in Year 12 and those completing their HSC are already able to return in a limited way, and this will continue for the remainder of Term 3. From 25 October, these students will have full-time access to school campuses and their teachers.
·HSC exams will be delayed until 9 November with a revised timetable and guidelines for a COVID-safe HSC to be released by NESA in early September.
·Double doses of COVID vaccinations will be mandatory for any staff on [… (photocopy obscured)] October and for all school staff from 8 November.
·[… (photocopy obscured)] vaccine is available to them as soon as possible.
Dear colleagues
Thank you for your ongoing incredible work to support our schools as they have moved to learning from home over the past few months.
Today, the NSW Government has announced our COVID-safe return-to-school plan to provide our schools and communities with greater clarity. It is the certainty we need to guide our efforts from now until the end of the year.
Developed in close partnership with NSW Health, the plan puts student and staff safety squarely at the centre of our decision-making – promoting a staggered return to school sites under COVID-safe conditions.
COVID-safe pathways to return to school
In line with state vaccination milestones, and a gradual easing of general community restrictions, student cohorts – starting with Kindergarten and Year 1 – will begin face-to-face learning from Monday 25 October under Level 3 plus operations, as long as community transmission and vaccination rate requirements have been met.
Other cohorts will then return to school sites under the same COVID-safe conditions in the following order:
·Year 2, 6 and 11 – from 1 November.
·Year 3, 4, 5, 7, 8, 9 and 10 – from 8 November.
Year 12 students and those completing their HSC are already able to return in a limited way and this will continue for the remainder of Term 3. From 25 October, these students will have full-time access to school campuses and their teachers.
Importantly, if stay-at-home rules are lifted in a local government area (LGA) or region before 25 October – for example, in parts of regional NSW – all students living or learning in that area will return to face-to-face learning under the department's existing COVID-safe Level 3 setting as previously established.
HSC exams delayed
HSC exams will be delayed until 9 November with a revised timetable and guidelines for a COVID-safe HSC to be released by NESA in early September. All students sitting their HSC will receive priority vaccination if they are eligible.
Vaccinations for all school-based staff and preschool staff – across all sectors – will be mandatory from 8 November and for any staff member on site from 25 October. We are encouraging all corporate staff to book in whatever vaccine is available to them by this date.
I know today's announcement presents many more changes for our school staff to begin planning for. I want to thank you all for your efforts to support our students, schools and each other.
Kind regards
Georgina Harrisson
Secretary”
On 2 September 2021, the respondent’s Chief People Officer, Ms Yvette Cachia, sent a further email to all school-based staff,[18] providing the following update on the vaccine mandate:
[18] AALD, p 18.
“From: Deputy Secretary, Chief People Officer
Sent: Thursday, 2 September 2021 2:32 PM
To: Internal Communication
Subject: Update on mandatory vaccinations
To: All school-based staff
CC: School Performance EDs, DELs, PSLs, SPN SSSP Directors, Learning Improvement executive
Vaccination update
A message from the Chief People Officer
What you need to know:
·From 8 November all NSW school and preschool staff will be required to have received 2 doses of COVID-19 vaccination.
·From 25 October all NSW school and preschool staff on-site to support the staged return of student cohorts under Level 3 plus will be required to have received two doses of COVID-19 vaccination.
·If staff return before 25 October in areas under Level 3 (no longer under stay-at-home rules) they are strongly encouraged to be fully vaccinated but it won’t be required until 8 November.
·Greater Sydney department staff can access priority AstraZeneca vaccinations at Qudos Bank Arena during the week beginning 6 September.
·Staff in regional NSW are encouraged to visit the eligibility checker and book their vaccination as soon as possible at a regional and rural vaccination clinic.
Good afternoon colleagues
We have been working with NSW Health since last Friday to ensure priority access to vaccinations for all our school and preschool staff who require both doses of a COVID-19 vaccination by 8 November 2021.
Very shortly, school staff in Greater Sydney are expected to be able to book in for priority AstraZeneca vaccinations at Qudos Bank Arena next week from 6 September. This is an important step on our roadmap towards a COVID-safe return to school sites.
6 September vaccination week for Greater Sydney staff
NSW Health will provide priority AstraZeneca vaccinations at Qudos Bank Arena for Greater Sydney school-based and preschool staff during the week beginning 6 September. This priority vaccination week program is available to all department staff – permanent, temporary and casual – including school staff, early education staff, preschool staff and corporate staff.
Appointment spots will open shortly via a link made available on our vaccination page. Please continue to check here as you plan your booking for next wee[k]. There will be no code required to prove eligibility; staff can begin booking spots as soon as they are open.
Staff are also encouraged to make use of the GP network, walk-in vaccination clinics and pharmacies to be vaccinated with whatever vaccine is available as soon as possible. Staff aged 16 to 49yrs living in Local Government Areas (LGAs) of concern can book a priority Pfizer vaccination
Vaccinations for staff in regional NSW
Staff in regional NSW are encouraged to regularly check the eligibility checker. New appointments are regularly being added in regional NSW. In addition staff can:
·book into one of the regional and rural vaccination clinics providing AstraZeneca to everyone aged over 18 years
·attend one of the pop-up clinics in Western NSW for Pfizer or AstraZeneca as appropriate.
Updated vaccination information
There have been many questions about the vaccination requirements. We appreciate this may be a challenging topic for some staff. I want to remind you how important it is to have respectful conversations with colleagues and understand that we all have different personal circumstances. All staff will be required to be vaccinated unless they are medically exempt from having one. You can find more information on which people on school sites are required to be vaccinated, providing and recording proof of vaccination, exemptions and other frequently asked questions on our updated vaccination page.
I want to encourage everyone to make the most of the opportunities available to ensure you are fully vaccinated before 8 November and to take advantage of whatever vaccine is available to you.
Regards
Yvette”

The Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021

The Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 was issued on 23 September 20201 by the then Minister for Health and Medical Research, and relevantly provides[19]:
[19] Reply, p 17.
“3      Grounds for concluding that there is a risk to public health
It is noted that the basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows—
(a)     public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2),
(b)     COVID-19 is a potentially fatal condition and is highly contagious,
(c)     a number of cases of individuals with COVID-19 have recently been confirmed in New South Wales and other Australian jurisdictions, and there is an ongoing risk of continuing introduction or transmission of the virus in New South Wales, including by means of community transmission,
(d)     the risk of transmission, including by means of community transmission, of COVID-19 in New South Wales will remain significant and ongoing unless more COVID-19 vaccines are administered,
(e)     there is a risk of transmission of COVID-19 among children at government schools, non-government schools and early education and care facilities because the COVID-19 vaccine is currently not available for children of certain ages.
4     Education and care workers must be vaccinated
(1) The Minister directs that an education and care worker must not carry out relevant work on or after 8 November 2021 unless the worker has—
(a) had 2 doses of a COVID-19 vaccine, or
(b) been issued with a medical contraindication certificate, or
(c) a medical contraindication recorded on the Australian Immunisation Register that prevents the person from receiving any approved COVID-19 vaccine available in New South Wales.
(2) The Minister directs that an education and care worker must provide the worker's vaccination evidence if requested by—
(a) a responsible person, or
(b) a person authorised by a responsible person.
(3) The Minister directs that each responsible person for an education and care worker must take all reasonable steps to ensure that the education and care worker complies with the directions of this clause.
(4)     This clause does not apply to an education and care worker who carries out relevant work in an emergency.
(5)     In this clause—
vaccination evidence for an education and care worker includes, until the beginning of 8 November 2021—
(a) evidence from the Australian Immunisation Register that the worker has had 1 dose of a COVID-19 vaccine, and
(b) evidence of an appointment to receive a COVID-19 vaccine.”

NSW Department of Education, COVID-19 Vaccination Guidelines

The respondent issued vaccination guidelines, applicable from 5 October 2021, outlining “the process and the obligations of the [respondent] and its workers under the Public Health Order.[20] The guidelines provide as follows in respect of non-compliance:
[20] Reply, pp 19–31.
“8.     Non-compliance
8.1    Staff that have not been vaccinated by 8 November 2021
■The NSW Government website provides information about how to get a COVID-19 vaccine.
■ Staff have been given reasonable notice to be fully vaccinated by 8 November 2021.
■ If staff are unable to secure or change their vaccination appointments to a time before 8 November 2021, they must:
§advise their manager or school principal that they will not be able to attend their place of work because they will not be vaccinated under the Public Health Order
§advise when they will meet the requirement to have both vaccinations
§discuss whether their duties can be carried out from home or whether they can access leave pending full vaccination.
■ There are no special leave provisions available to those who refuse to comply with these guidelines.
■ Principals and managers are encouraged to refer any members of staff who are hesitant about getting vaccinated to refer to NSW Health’s Know the facts COVID-19 vaccinations fact sheet ...
8.2    It is the individual’s responsibility to ensure they have received both doses of the COVID-19 vaccination by 8 November 2021 and meet the requirements outlined in these guidelines.
8.3    Staff that are required to support the staged return to school who are not fully vaccinated and do not have a medical contraindication as at 18 October 2021 cannot attend school sites and will be rostered to work from home until the next business day after they are fully vaccinated up until 5 November 2021. From 8 November 2021 onwards all staff are required to comply with the Public Health Order.
8.4    Staff who are currently on a period of leave that spans 8 November 2021 are required to prioritise getting vaccinated as soon as possible. Staff in this circumstance will need to ensure they meet the requirement to be fully vaccinated or, if medically exempt, obtain a medical contraindication certificate from a medical practitioner before returning to their school site after leave.
8.5    Under the Public Health Order, staff members who cannot provide evidence that they have received both doses of a COVID-19 vaccine by 8 November cannot enter school sites.
8.6    Staff who have only received one dose of the vaccine by 8 November must provide evidence of a booking to receive their second dose of the vaccination and will not be able to recommence their work duties on school sites until they have received their second dose.
8.7    Staff on leave that return to work after the Public Health Order expires will still be required to abide by these guidelines and provide evidence of their vaccination status prior to attending a school site.
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.”

NSW Government Education, Management of Conduct Related to Non-Compliance with COVID-19 Vaccination Requirements Guidelines

On 12 November 2021, the respondent implemented further guidelines to “outline the process and responsibility for handling, investigation and disciplinary decision-making about conduct that is not compliant with the department's COVID-19 vaccination requirements, Public Health Orders, industrial determinations and any directions for implementing these”.[21] This document provides the following definition of misconduct:
[21] Reply, pp 32–52.
“5.1.2 Defining misconduct and COVID-19 non-compliance
Misconduct is defined in the [Teaching Service Act 1980 and Education (School Administrative and Support Staff) Act 1987] as:
•       a contravention of any provision of the respective Acts or regulations
•       engaging in, or having engaged in, any conduct that justifies taking disciplinary action, for example conduct contrary to the Code of Conduct and/or other established department policies
•       taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act
•       taking any action against a person that is substantially in reprisal for an internal disclosure made by that person
•       misconduct may relate to an incident or conduct that happened either
- while the employee concerned was not on duty
-before the employee was appointed to their position.
The term misconduct applies to many different factual situations but usually involves deliberate acts. It could relate to an isolated or specific event or a pattern of conduct over time.
When considering whether conduct constitutes misconduct, consideration must be given to the objects of the Acts as set out in section 4.1.
Non-compliance with COVID-19 Vaccination Guidelines amounts to misconduct.
Employees are required to enter their vaccination status on the COVID-19 Vaccination and Attestation Confirmation System (VACS) by 8 November 2021.
VACS will allow principals to view employees who have completed their vaccination record before 8 November 2021.
An employee is not compliant when they have:
•       not completed the self-declaration in VACS by 8 November 2021
•       declared they are not vaccinated as at 8 November 2021
•       declared they are medically exempt as at 8 November 2021 but have failed to provide a medical exemption or the medical exemption is not compliant with the Public Health Orders and related guidelines.
Non-compliance with COVID-19 Vaccination Guidelines amounts to misconduct.”

The respondent’s section 78 notices

The s 78 notices issued by the respondent dated 21 January 2022[22] and 8 March 2022[23] contain the following paragraph:
“As a teacher in the NSW public school system, you are employed under the Teaching Services Act 1980 and are also subject to the Education Teaching Service Regulation 2001. These Acts provide that the protection of children is to be the paramount consideration in taking any action with respect to an employee, and on this basis the Department has a responsibility to ensure children are protected from contracting COVID-19. Teachers are also required to comply with any lawful direction given by the Department, which extends to the direction given by the NSW Government in relation to mandatory vaccinations. We therefore consider the Department's actions in issuing and enforcing the directive to be reasonable in the circumstances.”
[22] ARD, p 120.
[23] ARD, p 125.

THE MEMBER’S REASONS

The issue for determination before the Member was whether the respondent had a defence pursuant to s 11A of the 1987 Act; firstly whether the emails sent by the respondent were disciplinary in nature, and secondly, whether its actions were reasonable.
When considering whether the emails were disciplinary in nature, the Member did not accept the appellant’s submission that Webb could be distinguished on the facts. The Member noted that the appellant failed to consider the more narrow definition “that actions implementing adverse consequences for inappropriate behaviour in the workplace were matters of discipline …”.[24]
[24] Martsoukos v Secretary, Department of Education [2024] NSWPIC 16 (reasons), [101].
The Member accepted the respondent’s submissions that the definition of ‘discipline’ requires looking at the whole process, and not just the isolated state of affairs that pertained when the email was received. It also required considering the subsequent actions.[25]
[25] Reasons, [102].
The Member considered the respondent’s two emails dated 27 August 2021 and the chronology contained in the appellant’s statement dated 13 December 2021[26] acknowledging she knew from the first email that the Premier would be announcing “mandatory vaccination”. The Member concluded at [108] of his reasons:
“The word ‘mandatory’ is commonly synonymous with something that is compulsory. Two conclusions may accordingly be drawn:
·the announcements contained in both emails of 27 August 2021 were disciplinary in their nature. A command implies that it will be enforced if ignored.
·[the appellant], being a qualified teacher teaching secondary English/History may be presumed to have understood the meaning of both the word and the disciplinary implications if the mandate were not complied with.”
[26] ARD, p 14.
The Member was ultimately satisfied that the respondent’s emails dated 27 August 2021 and 2 September 2021 fell within the scope of disciplinary action under s 11A of the 1987 Act.
Having found that the emails were disciplinary in nature, the final issue for the Member was whether the respondent’s actions were reasonable. The Member ultimately found that the respondent acted reasonably. In coming to his decision, the Member noted the respondent took care to inform the appellant well in advance of when the vaccination was to be made compulsory[27] and the James Meehan High School Principal’s response to the appellant’s anxiety was reasonable. The Member noted there was no allegation from the appellant that the respondent’s rejection of the medical exemption was unreasonable. The Member rejected the appellant’s submission that it was open for the respondent to adopt methodologies for the small percentage of teachers who did not wish to be vaccinated. The Member noted that there was no evidence that the appellant applied for any non-school based positions and in any event, the argument contradicts the basis of her claim, being that the deprivation of her opportunity to teach in school by the mandate caused her injury.[28]
[27] Reasons, [117].
[28] Reasons, [138].
The Certificate of Determination issued on 11 January 2024 records:
“1. The psychological injury to the [appellant] has been predominantly caused by the reasonable actions taken by the respondent regarding discipline.
The Commission determines:
2. There is an award for the respondent.”

GROUNDS OF APPEAL

The appellant relies on two grounds of appeal which are as follows:
Ground One – “Ground of Appeal regarding whether the actions taken by the Respondent on 17 [sic, 27] August 2021 and 2 September 2021 were with respect to ‘discipline’ for the purposes of s 11A”
Ground Two – “Ground of Appeal as to whether the actions of the Respondent were ‘reasonable’.”

LEGISLATION

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.”

DISCUSSION

A few principles with respect to “discipline” for the purposes of s 11A of the 1987 Act

In Department of Education and Training v Sinclair,[29] Spigelman CJ said:
“Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”[30]
[29] [2005] NSWCA 465 (Sinclair).
[30] Sinclair, [96].
In the seminal s 11A decision of Northern NSW Local Health Network v Heggie,[31] Sackville AJA stated that:
“(i) 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.”[32]
[31] [2013] NSWCA 255 (Heggie).
[32] Heggie, [59].
However, the question for consideration in this case is what is the accepted or correct characterisation of “discipline”? This question was considered by the Court of Appeal with respect to the Police Act 1990 in Police Association of New South Wales v State of New South Wales.[33] In the Police Case, the Court was called upon to consider whether the term “non-disciplinary transfer” in the Police Act had the characteristic of “discipline”. At [5] Macfarlan JA said the following:
“The adjective ‘non-disciplinary’ before the word ‘transfer’ in Schedule 1 is suggestive of the same point. In this context the word ‘discipline’ (and its derivatives) in my view refers to ‘punishment inflicted by way of correction and training’ (Macquarie Dictionary, online version, 3^rd listed meaning). To my mind therefore, a ‘non-disciplinary transfer’ is one that does not have the purpose and effect of punishing the officer by causing some significant prejudice to the officer in response to the officer’s misconduct or unsatisfactory performance.”
[33] [2020] NSWCA 3 (Police Case).
Later in the Police Case, Barrett AJA put it in these terms:
“In the police context, ‘discipline’ is a process through which coercive correction is exerted for the purpose of promoting efficiency, morale and attention to duty so that public confidence in the ability of the police force to protect the public may be maintained. Disciplinary measures are corrective in nature. They may, but need not, involve punishment or chastisement of the individual officer.”[34]
[34] The Police Case, [114].
Whilst this dicta is in the context of The Police Act 1990, it is apparent that their Honours were of the view that the essence of “discipline” involved some coercive corrective measure, which may encompass different measures.
In the former Workers Compensation Commission, the nature of discipline was examined by Deputy President Wood in Webb v State of New South Wales.[35] In Webb the Deputy President said the following:
“The more recent authorities indicate that what is involved in ‘discipline’ stems from action taken in respect of the worker’s conduct or performance in the workplace, or arising out of the worker’s employment [Dennis v NSW Fire Brigades [2007] NSWWCCPD 165]. Discipline can include offering support and training to improve performance [Soutar v The Commissioner of Police [2006] NSWDC 95]. As Snell AP determined in [Mascaro v Inner West Council [2018] NSWWCCPD 29], communicating adverse findings as to conduct in employment, requiring and administering a mentor program intended to improve performance, and advising that the worker’s mentoring program was to continue because of the worker’s unsatisfactory progress are all matters that fall within the scope of ‘discipline.’ Of course, what was referred to by Neilson CCJ in [Kushwaha v Queanbeyan City Council [2002] NSWCC 25] as the narrow definition of discipline, chastisement, and actions implementing adverse consequences for inappropriate behaviour in the workplace will also be matters of discipline.”[36]
[35] [2019] NSWWCCPD 50 (Webb).
[36] Webb, [141].
I would also note that in Bottle v Wieland Consumables Pty Ltd,[37] his Honour Judge Neilson found that the giving of a lawful instruction was not “discipline”. Clearly, his Honour’s finding in Bottle v Wieland was fact sensitive to that case. But it is illustrative of a direction given by the employer lacking the necessary ‘coercive corrective’ element so as to imbue the direction with a disciplinary colour. A lawful direction given to an employee may simply be a direction to perform a particular task, or work at a particular location, or any one of a myriad of directions given in the course of an employment relationship. Unless the direction has the necessary element or intention of being “coercive correction” or a measure consistent with that purpose, it will lack the necessary disciplinary colour.
[37] [1999] NSWCC 32; 19 NSWCCR 135 (Bottle v Wieland).

As to Ground One

The appellant submits that the actions taken by the respondent on 27 August 2021 and 2 September 2021 were not “discipline”. The Member’s finding that it was disciplinary action, it is submitted, was affected by error of fact and/or law.
The appellant says:
“It is submitted there is nothing in the emails of 27 August 2021 or 2 September 2021 that falls within the definition of ‘discipline’. The most that the emails state is that teachers are required to be vaccinated by 8 November 2021. There is no indication in those emails that any disciplinary action will be taken if a teacher is not vaccinated.”[38]
[38] Appellant’s submissions, [18].
The appellant points to various actions which occurred subsequently to these two emails, submitting that “none of the ‘proposed actions’ by the Respondent regarding ‘discipline’ were in effect as at early September 2021 by which time the Appellant was already injured and seeking medical treatment. The only actions by the Respondent which caused the Appellant’s injury were the emails of [27] August 2021 and 2 September 2021.”[39] The appellant says that the respondent did not discharge its onus of proving that the emails were part of a disciplinary process.
[39] Appellant’s submissions, [26].

In response the respondent says the following:
“19. The Respondent submits that the Member was correct in finding as he did that the actions of the Respondent satisfied the definition of ‘discipline’ as referred to in [s 11A(1) of the 1987 Act] and in doing so did not enter into an error of fact or law.
20.    What constitutes ‘Discipline’ can, depending on the facts of any particular case, vary from a single event to a consideration of ‘the whole process involved in the employer’s action to be taken into account in the assessment of whether that action constituted ‘Discipline’ for the purposes of s 11A …” (see [Webb] at [139]).
21.    The Appellant does not argue here that what constitutes ‘discipline’ cannot be considered to be a process.
22.    Whether the facts here satisfied the definition of ‘discipline’ or not was an evaluative matter involving questions of impression and degree for the Member to conclude.
23.    The evidence was clear and accepted that the Appellant received two emails from the Respondent notifying her that it was mandatory that she be vaccinated and that this led to her sustaining the injury she suffered.
24.    The Appellant acknowledged in an addendum to a statement dated 13 December 21 that she knew from the first email that the Premier would be announcing a ‘mandatory vaccination’ which would require her to be vaccinated.
25.    The Member analysed the term ‘mandatory’ correctly at [reasons [107]] and concluded that the Appellant as a school teacher knew what the term meant and the disciplinary implications that would follow if she did not comply with the mandate.
26.    Clearly the Member accepted that the emails formed part of a ‘disciplinary process’ and therefore the definition of ‘discipline’ in [s 11A of the 1987 Act] was satisfied. It is submitted that the Member was correct in so doing.”

Direction

On 27 November 2024, I issued the parties a Direction, posing five questions touching on this appeal ground. The five questions are:
“1. In the s 78 Notice issued by the respondent dated 21 January 2022, the respondent drew the appellant’s attention to her obligations under the Teaching Service Act 1980 (NSW) (1980 Act) and the Education Teaching Service Regulation (NSW) 2001 (Regulation). Specifically, the respondent drew attention to the appellant’s obligation to comply with any lawful direction issued by the respondent. This is apparently a reference to the obligation (in those terms) appearing in s 6(i) of the Regulation referenced in the Notice. Is this correct?
2. Part 3 of the Regulation deals with breaches of discipline by members of staff. Part 3 sets out the process to be followed. Does the respondent assert that this process had been actioned in this matter? If yes, please direct the Commission’s attention to a reference in the evidence.
3. The 1980 Act defines ‘disciplinary action’ at s 93B and ‘misconduct’ at s 93C. Whilst in [Heggie] Sackville AJA said that a broad approach involving a consideration of the whole process was required to assess whether action constituted ‘discipline’, do the statutory definitions in ss 93B and 93C of the 1980 Act affect the approach taken to this question? Namely, is the approach posed in Heggie modified by these provisions? For example, do the definitions in the 1980 Act specify what disciplinary action is for staff members such as the appellant?
4. The relevant communications from the respondent are emails to all teaching staff and others dated 27 August 2021 and 2 September 2021, which the respondent asserts are disciplinary in nature. The parties are to direct the Commission’s attention to the passages in these emails which are said to be of a disciplinary nature as contemplated in the 1980 Act and Regulation.
5. Further in relation to these emails, the parties are to provide submissions on what each asserts is the true character of those communications. For example, given the reference to the respondent’s reliance upon the obligation on the appellant to comply with lawful directions in the s 78 Notice, apparently arising from the Regulation, is it a proper characterisation of the 27 August and 2 September 2021 emails that they represent a lawful direction issued by the employer, and if not, why not?
In short, are those emails when properly construed a lawful direction under s 6(i) of the Regulation?”
In answer to the Direction, the appellant submitted as follows:
“1. The Respondent specifically relied upon its statutory obligations and powers under the relevant legislation to provide a rationale that its actions in compelling teachers to be vaccinated were required and could be substantiated as being reasonable actions by reference to its enabling legislation. The Respondent relied upon section 5A of the Teaching Service Act which provides that the protection of children is the paramount consideration in taking any action under the Act, referring in the section 78 notice (ARD page 122) to a responsibility to ensure children are protected from contracting COVID-19.
Specific reference is made in the section 78 notice to the Education Teaching Service Regulation 2001 and that ‘teachers are required to comply with any lawful direction given by the Department’. This reflects the provisions of Regulation 6(1) that a member of staff must immediately comply with any lawful direction by the Respondent.
It is submitted that it is obvious that the section 78 notice refers to Regulation 6 of the Education Teaching Service Regulation 2001.
2.      There is no evidence in this matter that Part 3 of the Regulation was ever invoked by the Respondent.
3. It is submitted that the Respondent is given powers under sections 6 and 7 of the Teaching Service Act much greater than would be available to an ‘ordinary’ employer. This is not surprising considering the Respondent’s role in conducting the efficient, effective and economical management of the Teaching Service (section 6), including the functions under section 7, with its obligations under section 5A to protect children.
These powers extend to appointments and promotions (sections 44 and following) and management of performance (including discipline: sections 93C to 93P). The Education Teaching Service Regulations enacted under the Act provides for requirement for staff to comply with lawful directions (Regulation 6), requiring staff to undergo medical examinations (Regulation 11), and laying of charges (Regulation 15).
It is submitted that actions taken with respect to discipline in section 11A of the Workers Compensation Act is not defined by the statutory definitions of ‘discipline’ set out in sections 93B and 93C of the Teaching Service Act.
However, it is submitted that sections 93A to 93P of the Teaching Service Act modifies the approach posed in Heggie by setting out a statutory regime against which the question whether an action is a matter of discipline and whether the action was reasonable can be judged.
It is submitted that the absence of the Respondent utilising its powers under the Act and Regulations means that the actions of the Respondent were not in respect of ‘discipline’ for the purposes of section 11A. To require an employee to comply with a lawful direction first requires the Respondent to give such a Direction: there is no evidence that any such direction was made in this case.
To lay charges against an employee for failing to comply with a lawful direction requires evidence that such a lawful direction had been given and that there had been a failure. For the purposes of ‘discipline’ of a teacher, there is a requirement (in most cases) to lay charges. There was no evidence of ANY of these factors in this case.
4.      Although referred to in the Index to the Reply, the email of 27 August 2021 was not in evidence before the Member. There is no doubt regarding the existence of the email of 27 August 2021 to which the Appellant (ARD 25 and 31) and Dr Wood (Reply 87) referred. Neither of descriptions of that email of 27 August 2021 make any reference to matters of a disciplinary nature.
The email of 27 August 2021 (which was to all employees of the Respondent) was dealt with in the matter of Secretary, Department of Education v Uzunovska [2024] NSWPICPD. At [58], President Judge Phillips commented that the employer called no evidence to support its assertion that it had initiated disciplinary action against the employee prior to her seeking medical attention. The Appellant refers to the whole of paragraph 56 together with paragraphs 64 to 66 of that Decision (see further below under paragraph 5).
In this matter, the Appellant described her shock and psychiatric reaction to the emails soon after she received them (ARD 32, paras 6 to 11) and consulted Dr Hsu with psychiatric symptoms on 7 September 2021 (ARD 74).
The email of 2 September 2021 is at Reply 7 – 10. The closest it comes to anything to do with ‘discipline’ is:
‘From November 8 all NSW school and preschool staff will be required to have received 2 doses of COVID – 19 vaccination’ (page 7) and
‘All staff will be required to be vaccinated unless they are medically exempt from having one’ (page 9).
Neither of these sentences indicate any specific lawful direction to a member of staff (or all staff) as contemplated by Regulation 6 and there is no mention of any consequences for any failure to comply with the requirement which would indicate any ‘disciplinary’ consequences for a failure to comply.
It is submitted that neither of the emails is a lawful direction under Regulation 6. The emails do not have the character of a direction. Further, the emails say that staff WILL (as ‘in the future’) be required to be vaccinated, not that there was a direction as at 27 August 2021 or 2 September 2021.
Indeed the Determination under the Teaching Service Act requiring teachers to be vaccinated was not made until 18 October 2021. No Direction was given until 18 October 2021, yet the Appellant had already suffered injury by that stage, noting a strong ‘shock’ on 27 August 2021 (see history to Dr Boulton, ARD 3 and ARD references in paragraph 4 above).
5.      It is submitted that the emails of 27 August 2021 and 2 September 2021 were best characterised by the description by Dr Wood (Reply 88, para 7): the email of 27 August 2021 advised staff of the INTENTION to introduce the COVID-19 mandate and provide what information the Respondent had at that time. The Respondent wanted to ensure its staff were kept updated as the situation was moving quickly.
The email of 2 September 2021 was described by Dr Wood (Reply 89, para 10) to provide an update on mandatory vaccinations. This included information regarding access to priority vaccinations and provided access to the undated (probably should read ‘updated’) intranet page.
That email (Reply 7 – 10) makes no mention of Directions or disciplinary consequences of failing to be vaccinated and the Appellant repeats what is set out under number 4 above: the email talks about actions happening in the future, not a direction at that time.
It is submitted that the Respondent’s own evidence from Dr Wood (who was its Executive Director, COVID Taskforce from July 2021 to February 2022) does NOT indicate that the emails of 27 August 2021 or 2 September 2021 were disciplinary in nature for the purposes of section 11A.
The characterisation of the emails is as set out in paragraph 4 above by President Judge Phillips in Secretary, Department of Education v Uzunovska has been followed recently by Deputy President Snell in the matter of Boyd v Secretary, Department of Education [2024] NSWPICPD 79, paragraphs 142 to 144.
The conclusion (that the emails were NOT ‘action taken or proposed to be taken … with respect to … discipline’) can be reached without reference to the Teaching Service Act 1980 or the Education Teaching Service Regulation 2001.
However, the Appellant submits that this matter can also be determined by reference to the 1980 Act and the 2001 Regulation (see the submissions in paragraph 3 above).”
The respondent submitted the following answers in response to the Direction:
“1. The reference in the respondent’s section 78 notice dated 21 January 2022 to the appellant’s obligation to comply with any lawful direction issued by the respondent is a specific reference to clause 6(1) of the Education Teaching Service Regulation 2001 (Regulation).
2. The appellant was compliant with the Teaching Service Act 1980 (the 1980 Act) up until 8 November 2021 when the requirement to be vaccinated came into force. The disciplinary breach therefore did not occur until 8 November 2021. At that time the appellant was on approved sick leave so the respondent was precluded from actioning the process in Part 3 of the Regulation.
3. The statutory definitions in sections 93B and 93C do not affect the approach taken in [Heggie]. Heggie found that a broad view of the expression ‘action with respect to discipline’ would be adopted, which includes all aspects of processes related to discipline, including investigation.
Misconduct in section 93C of the 1980 Act includes a ‘contravention of any provision of this Act’. To contravene something, staff must have been directed to do something first. In this case staff were directed to be vaccinated against COVID-19 in the communications of 27 August 2021 and 2 September 2021. To understand the disciplinary action taken or proposed to be taken following a contravention of the Act, you must consider the whole process which starts with the direction and warning issued by the Department on 27 August 2021 and 2 September 2021, and continued through to the introduction and implementation of the Public Health Order, Direction and Guidelines over October and November 2021.
The communications sent by the Department formed part of the disciplinary process as it used language such as ‘mandatory’ which suggests impacts on employment, including disciplinary action or dismissal if staff failed to comply with the directions.
Section 93D of the 1980 Act provides that the Secretary may issue guidelines for the purpose of dealing with allegations of misconduct against officers as a disciplinary matter.
The COVID-19 Vaccination Guidelines were implemented on 5 October 2021 which stipulates that vaccination against COVID-19 is a mandatory public health requirement and all staff must provide evidence that they are fully vaccinated by 8 November in order to meet the requirements of the Public Health Order.
8.9 of the COVID-19 Guidelines state that 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.
In accordance with section 93D of the 1980 Act the respondent specified the disciplinary action that may be taken for staff members such as the appellant if she failed to comply with the direction to be vaccinated.
4. The email communication dated 27 August 2021 addressed to all teaching staff states that ‘mandatory double doses of vaccinations will be required for all staff from 8 November’. The email communication dated 2 September 2021 states that ‘All staff will be required to be vaccinated’.
The use of language such as ‘mandatory’ suggests the direction to be vaccinated was compulsory. If something is compulsory, it follows that there will be consequences if you fail to comply. The disciplinary process therefore started in August 2021 with the first communication issued by the Department as disciplinary action could be inferred if staff failed to comply with the mandatory requirement to be vaccinated.
Clause 6(1) of the Regulation provides that a member of staff must immediately comply with any lawful direction given by a person who has authority under the Act to give the direction. The direction to be vaccinated on 27 August 2021 was given by the Secretary of the Department whose function is to maintain discipline in the Teaching Service in accordance with section 7(1)(f) of the 1980 Act.
Section 93C of the 1980 Act defines misconduct as a ‘contravention of any provision of this Act or the Regulation. A failure to comply with a lawful direction is a contravention of clause 6(1) of the Regulation. Accordingly, a failure to comply with the direction to be vaccinated as stipulated in the email communications of 27 August 2021 and 2 September 2021 is a contravention of the Regulation which amounts to misconduct pursuant to section 93C of the 1980 Act.
The respondent submits that the emails of 27 August 2021 and 2 September 2021 were disciplinary in nature as contemplated in the 1980 Act and Regulation.
5. The emails of 27 August 2021 and 2 September 2021 represent lawful directions issued by the respondent under section 6(1) of the Regulation.
The direction to be vaccinated was issued in the context of an international global pandemic, and the lawfulness of the direction must be considered having regard to that point in time and not retrospectively.
The direction was issued to put into effect the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2022 (PHO) issued by the NSW Government which required that all teaching staff must be double vaccinated by 8 November 2021. The email communications of 27 August 2021 and 2 September 2021 were informing staff of Government requirements and executing the orders of the NSW Government as they were obligated to do.
The respondent’s employment was governed by the 1980 Act and the Regulation which provides that the protection of children is to be the paramount consideration when taking action against an employee, and that teachers are to comply with lawful directions given by the Department or NSW Government. The Department’s actions in issuing and enforcing the directive was reasonable and lawful having regard to its obligations and responsibilities.”

Consideration

The Member dealt with the subject of discipline at reasons [98]–[116]. The Member rejected the appellant’s submissions that the respondent’s actions were to be isolated to the emails. The Member found that the actions taken subsequently were also relevant in considering discipline.[40] The Member recounted aspects of the 27 August 2021 email with particular focus on the mandatory nature of the requirement for all staff, including the appellant, to have received double doses of the COVID-19 vaccine by 8 November 2021. The Member then drew the following conclusions at reasons [108]:
“The word ‘mandatory’ is commonly synonymous with something that is compulsory. Two conclusions may accordingly be drawn:
· the announcements contained in both emails of 27 August 2021 were disciplinary in their nature. A command implies that it will be enforced if ignored.
· Ms Martsoukos, being a qualified teacher teaching secondary English/History may be presumed to have understood the meaning of both the word and the disciplinary implications if the mandate were not complied with.”
[40] Reasons, [102].
The Member then referred to the Public Health Order of 23 September 2021, which applied to the appellant and provided inter alia that such a worker had to be vaccinated. The Member concluded by remarking that the Management of Conduct document issued on 12 November 2021 made non-compliance with the COVID vaccination requirement as constituting misconduct.
The question for consideration is whether the Member’s finding that the 27 August and 2 September 2021 emails were disciplinary in nature was an error, either as a finding of fact or a legal conclusion drawn for the email and the surrounding circumstances. I accept the respondent’s submission that the Member’s finding (at reasons [108]) was an evaluative exercise whose resolution involved balancing matters of fact and degree. In Australian Air Express Pty Ltd v Langford,[41] the Court of Appeal said that in respect of such evaluative decisions, it was insufficient for an appellate court to have a different view. Rather, the decision maker must be shown to have been wrong.[42] This authority is consistent with the terms of s 352(5) of the 1998 Act.[43]
[41] [2005] NSWCA 96 (Langford).
[42] Langford, [15].
[43] As explained in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [17]–[31].

As I have set out above, it was common ground that the appellant’s injury was caused by the receipt of the emails of 27 August and 2 September 2021 which the Member has found were disciplinary in nature. As a consequence, I do not accept that the conclusions reached by the Member at reasons [108] were an available construction of the evidence to substantiate the finding that the emails were part of action with respect to discipline.
For the following reasons, the Member was in error in making this finding. There is no support in the plain reading of the emails themselves to support this finding, nor is there support in other evidence.
In answer to the Direction I issued on 27 November 2024, the respondent confirmed that the lawful direction given in both emails was issued pursuant to clause 6(1) of the Regulation, which provides the respondent with the power to issue such directions. Clause 6(1) is found in Part 2 of the Regulation, which deals with the subject “Duties of members of staff”. Part 3 of the Regulation is entitled “Breaches of discipline by members of staff”. Part 3 provides a scheme for how disciplinary matters are to be dealt with, the requisite procedures are spelt out (clause 14), how charges are laid and dealt with (clauses 15 and 16), and how the inquiry is to be conducted (clause 17). Clause 17 is quite specific about the conduct of an inquiry by a disciplinary authority.
Parts 2 and 3 of the Regulation deal with two quite distinct aspects of the employment relationship. Rather than relying upon an employees’ common law duty to obey an employer’s reasonable and lawful commands, the Regulation, (and the 1980 Act for reasons I will develop) provides a framework for the management of these matters.
It is telling that the directions in the two emails in question, rely only on the power to issue lawful commands in Part 2, clause 6(1) of the Regulation. I have read both emails carefully. Nowhere is there any mention of the clause 6(1) direction being disciplinary in nature nor are there any of the processes set out in Part 3 of the Regulation called in the respondent’s aid in either email. Part 2 does not sit in the Part of the Regulation that deals with discipline.
The Member and the respondent both rely on the mandatory nature of the direction given in the emails as imbuing the emails with a disciplinary character. Namely, being compulsory directions, where consequences of a disciplinary nature will follow if the direction is not complied with. The respondent states that “… disciplinary action could be inferred if staff failed to comply …”[44] The respondent, being unable to point to any specific disciplinary content or passages of the emails and in the absence of any direct evidence on that point, invites an inference to be drawn adverse to the appellant. I reject this submission. Whether disciplinary action has been commenced or intimated cannot depend upon the subjective interpretation of a person such as the appellant. This is especially the case in the teaching environment where such matters are highly regulated in the 1980 Act and Regulation.
[44] Respondent’s Answer to Direction dated 27 November 2024 (Respondent’s Answer to Direction), point 4.
I have[45] referred to various decided cases which considered the meaning of “discipline” in various contexts. What is apparent is that the cases are support for the proposition that discipline requires some element of ‘coercive correction’. In Bottle v Wieland, Judge Neilson opined that for a lawful direction to be disciplinary, it required a necessary element of coercive correction.
[45] Above at [37]–[41].
The fact that the direction in the emails is couched in mandatory terms does not ipso facto render the direction to be action with respect to discipline. Every employer has the power to issue reasonable and lawful commands. The respondent’s powers are set out in the 1980 Act and Regulation. Nowhere is Part 3 of the Regulation, which deals with discipline, referred to in the email. The respondent relied upon the evidence of Dr Paul Wood, Executive Director Educational Standards.[46]In his statement dated 31 May 2022, Dr Wood makes it clear that the 27 August 2021 email was sent to keep all school based staff “ … up to date on the progress of the PHO[47] ...” Nowhere in his statement does Dr Wood ascribe either the 27 August or 2 September 2021 emails as being disciplinary in nature, either actual or proposed. Given that these emails went to all school-based staff in NSW, it is fanciful to assert that every recipient was at that stage under disciplinary action, either actual or proposed.
[46] Reply, p 86.
[47] The Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021.
I also reject the Member’s finding[48] that the appellant, being a qualified teacher, may be presumed to understand the meaning of the words used in the email and the disciplinary ramifications. I reject the finding that the disciplinary character of the two emails depends upon the appellant’s subjective interpretation of the emails. Dr Wood for the respondent did not ascribe the emails as possessing this quality.
[48] Reasons [108].
I dealt with a similar submission made by the respondent in Secretary, Department of Education v Uzunovska,[49] which is referred to by the appellant at paragraphs [4]–[5] of its response to the Direction I issued on 27 November 2024. Nothing has been put in this matter which would alter the approach I took in Uzunovska and which has subsequently been followed in Boyd v Secretary, Department of Education.[50] Indeed, in this case, in light of the answers to the 27 November 2024 Direction, this interpretation of the two emails not being disciplinary is even stronger.
[49] [2024] NSWPICPD 19 (Uzunovska), [64].
[50] [2024] NSWPICPD 79.
The respondent though invites this construction of the two emails. In the Direction of 27 November at Question 3, I directed attention to ss 93B and 93C of the 1980 Act and asked how those provisions affected the broad approach to discipline described by Sackville AJA in Heggie. In answer to this question, the respondent stated that a broad approach to such action encompasses all aspects of the process related to discipline, including investigation. The respondent argues that “[t]he communications sent by the Department formed part of the disciplinary process as it used language such as ‘mandatory’ which suggests impacts on employment, including disciplinary action or dismissal if staff failed to comply with the directions.”[51] Heggie does indeed say that a broad approach with respect to disciplinary action, including investigation is to be taken in s 11A cases. This however, is dependent upon the requisite action itself, here the two emails, being action with respect to discipline or the investigation.
[51] Respondent’s Answer to Direction, point 3.
In this case, it is apparent that the two emails are not initiating an investigation or are disciplinary in content or nature. The emails do not expressly say that they are. There is no element of ‘coercive correction’ as described in the caselaw appearing in the emails which would give them the necessary disciplinary colour. Dr Wood for the respondent does not ascribe that quality to them and they are not issued in accordance with the Regulation and its provisions about disciplinary action. All the respondent and Member rely upon is the appellant drawing an inference that the emails are in fact the start of a disciplinary or investigatory process. I reject this submission and conclusion. It is plainly apparent that neither email initiated an investigation of any alleged breach of discipline. This does not stop the emails from being evidence in a later investigation, however it is a long way from the emails being part of the process of an investigation with respect to discipline.
As the respondent has stated, the emails are a lawful direction issued under clause 6(1) of the Regulation. This in and of itself does not transform that direction into an investigation with respect to disciplinary action. The direction contained in the emails, in and of itself, is not imbued with the necessary element of ‘coercive correction’ so as to make it disciplinary in nature.
Error has been established. There was no factual support for the findings made by the Member at Reasons [108]. The conclusion drawn by the Member as support for his finding was wrong at law.
Ground One has been established.

As to Ground Two

This ground takes issue with the Member’s approach to the reasonableness of the respondent’s actions.[52] Given what I have found in relation to Ground One, on one view I do not need to decide Ground Two, as clearly the issue does not arise if the relevant actions were not with respect to discipline.
[52] Reasons [117]–[141].
However, given the matter will be remitted, I will decide Ground Two.
In light of what I have found in relation to Ground One, Ground Two must also succeed. The Member has clearly taken into account the emails of 27 August and 2 September 2021 as being actions with respect to discipline that had to be considered in assessing the overall question of reasonableness for s 11A purposes.[53] For the reasons set out in relation to Ground One, this is an irrelevant consideration.[54]
[53] See Reasons [119], [120], [122] and [136].
[54] House v King [1936] HCA 40; 55 CLR 499.
Ground Two is established. This matter will be remitted to another Member to consider all issues in accordance with these reasons.

DECISION

The Certificate of Determination dated 11 January 2024 is revoked.
The matter is remitted to another Member for hearing and determination in accordance with these reasons.

Judge Phillips

PRESIDENT

17 December 2024