Martsoukos v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Martsoukos v Secretary, Department of Education [2024] NSWPIC 16
APPLICANT:	Evgenia Martsoukos
RESPONDENT:	Secretary, Department of Education
MEMBER:	John Wynyard
DATE OF DECISION:	11 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by schoolteacher for lump sum compensation after suffering a psychological injury as a result of the Public Health Order mandating compulsory vaccination; whether section 11A defence available; whether Hamad v Q Catering Limited complied with as to proof that respondent wholly or predominantly the cause of injury; whether employer able to rely on events following the alleged injurious event (receipt of an email); whether employer’s actions related to discipline as defined by authorities; whether employers actions reasonable; Held – medical evidence demonstrated that injury predominantly caused by actions of employer, Hamad v Q Catering Limited considered and applied; in relation to discipline, the whole process; in this case the emails and guidelines was relevant; Webb v State of New South Wales considered and applied; actions reasonable on the evidence; award for the respondent.
DETERMINATIONS MADE:	The Commission finds: 1. The psychological injury to the applicant 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.

STATEMENT OF REASONS

BACKGROUND

Evgenia Martsoukos, the applicant, brings an action against the Secretary, Department of Education, the respondent for weekly payments of compensation and medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) in relation to a psychological injury sustained on 27 August 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) do the provisions of s 11A of the 1987 Act apply?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard over two days on 15 November 2023 and 22 December 2023. The applicant was represented by Mr John Dodd of counsel, instructed by Mr David McCabe. The respondent was represented by Mr Stuart Grant, instructed by Ms Eloise Cotchett.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents (ALD) by applicant dated 8 November 2023, and
(c)    Reply and attached documents.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS
Preliminary

At the commencement of the hearing, the respondent admitted that Ms Martsoukos suffered a psychological injury following receipt of emails from the respondent on 27 August 2021 advising her that she would have to be fully vaccinated as a condition of returning to her occupation as a teacher at James Meehan High School. However, it relied on the defence afforded in s 11A of the 1987 Act, claiming that her injury was wholly or predominantly caused by its actions regarding discipline, which actions had been reasonable. Although the latest s 78 Notice dated 26 April 2022 also raised the actions of “dismissal and/or provision of employment benefits to workers”, Mr Grant expressly stated that the action the respondent relied on pertained to “discipline.”
Part of the ALD contained the transcript of a cross examination of Paul Brian Wood on 29 August 2022 in another matter in which the applicant claimed that she had been injured by the Public Health Order mandating vaccinations for schoolteachers.[1] Mr Grant objected to this evidence, and the transcript will show that after hearing argument, I admitted it on the basis that I could ascribe to it such weight as I thought fit. Dr Wood was the Executive Director, Educational Standards at the NSW Department of Education. His statement dated 31 May 2022 was lodged by the respondent.
[1] Davis v Secretary, Department of Education [2022] NSWPIC 715.

Ms Martsoukos

Ms Martsoukos made statements dated 13 December 2021[2] and 23 January 2023.[3]
[2] ARD page 15.
[3] ARD page 30.
In her earlier statement she said that she graduated with a double degree from the University of New South Wales in 1994 in Arts/Education. She had immediately commenced employment with the respondent, (with whom she was employed until she was medically retired on 17 August 2023[4]).
[4] ALD page 8.
Ms Martsoukos obtained a permanent full-time position at James Meehan High School in 1999, where she taught secondary English/History in a disadvantaged and low socio-economic area of Western Sydney. She said:[5]
[5] ARD page 16.
“Now a senior teacher, over this time, I have been afforded the opportunity to be able to make many valuable contributions to my school community in various capacities but most notably, after 22 years of service have had the privilege of teaching, supporting and mentoring several generation of students and families of this school community - many of whom I assisted in becoming the first in their family to graduate from High school, receive a Higher school Certificate and/or attain acceptance in Tertiary Education and further Academic Studies.”
Ms Martsoukos said that she had many opportunities to undertake many different roles, and relieved in executive positions over many years. She was relieving Head Teacher of the English Faculty for a while. She said:[6]
[6] ARD page 16.
“…Most recently, I was successful in the appointment of Covid Intervention Facilitator, assisting with the provision of additional support and management of one on one and small group tuition, mentoring and assistance to students of low socio- economic backgrounds most impacted by 2020 lockdowns, enabling improved engagement, confidence and outcomes achievement….
Throughout the 26 years of my teaching career, I have always set high standards, been a model employee, highly professional and supportive member of staff who has rarely taken sick days and have always done my utmost to best support and the needs of all my students and my profession. I have always been and remain a highly respected member of staff and regarded a consummate professional educator with a wealth of experience by teaching staff and student alike.”
At [9][7] Ms Martsoukos noted that prior to 27 August 2021 she had undergone “anxiety and trauma” from workplace incidents over a five year period. She said:
[7] ARD page 15.
“I have previously suffered anxiety and trauma due to workplace incidents and conditions around the misplacement of students with behaviour issues along with the emotionally and mentally taxing circumstances involving the unprecedented high turnover of Senior Executive and other staff at the school I work at, including 7 Principals and numerous Deputies in the space of a 5year period. This included the investigation and subsequent dismissal/removal of the substantive Principal, School Business Manager and other staff. These events in an already difficult school environment – with student some of which have complex behavioural issues and even violent - made for an extremely difficult, chaotic stressful and at times unsafe working environment that caused high levels of stress, anxiety, trauma change fatigue.”
Ms Martsoukos said that her symptoms were “noticeably exacerbated and compounded on 27 August 2021 following the announcement of mandatory vaccination as a new condition of my employment…”
At [10] Ms Martsoukos referred to the Public Health Order 2021 (COVID 19 Vaccination of Education and Care Workers), noting that it required staff to be fully vaccinated by 8 November 2021, or earlier if attending work on school grounds.
Ms Martsoukos noted that amongst the workers identified in the Order were teachers and education providers.
Ms Martsoukos said that “ongoing workplace pressure, harassment, coercion and bullying to comply and respond against my will and under duress to everchanging circumstances and threatening directives that I did not feel comfortable, safe or adequately informed about” had caused this exacerbation.
Ms Martsoukos noted the terms of the Public Health Order, including that an exemption was available if a worker was “unable to be vaccinated in the rare situation of a medical contraindication.”
Ms Martsoukos said:[8]
[8] ARD page 18.
“12. As a result of the vaccination mandate and my decision to not be fully vaccinated, I started to suffer the following symptoms:….”
Ms Martsoukos then listed 14 symptoms, saying, inter alia[9]:
[9] ARD page 18.
“I felt duress, powerless, harassed, coerced, bullied and threatened…
…There was nothing I could do to change the situation and the constant pressures, harassment, coercion and [bullying] made me feel like I was pushed into a corner, without a say or adequate information and support…
As a result of this mandate, which was issued by the NSW Government/employer….”
Ms Martsoukos then explained why she had made her decision not to be double vaccinated, the main issues appearing to be:
“15. I believe that the mandatory COVID vaccination order cannot be justified as it impinges on my liberties and rights that exist in Australia. It has been widely accepted ghat for the overwhelming majority of Australians, vaccinations should be voluntary. The commonly accepted definition of voluntary includes acting on one’s free will, optional or non-compulsory.
22.   The Prime Minister in a media conference on 21 July 2021 said ‘people make their own decisions about their own health and their own bodies. That's why we don't have mandatory vaccinations in relation to the general population.’ I agree I should be able to make my own decision about my health and my body.
23.    Safe Work Australia was asked whether employers need to include mandatory vaccination as a controlled measure to comply with work health and safety duties and Safe Work Australia has advised ‘it is unlikely that a requirement for workers to be vaccinated will be ‘reasonably practicable’.
27.    I believe the State Government who forced my employer to mandate vaccinations should be liable for my adverse reactions, as it was a foreseeable outcome, when making the mandate.
28.    I believe the COVID-19 vaccination mandate denies me my fundamental right to work, as the mandate to be vaccinated restricts or removes my basic liberties and this must be proportionate and necessary to manage the risk and must be the minimum necessary to achieve the public health aims.
(Emphasis as written.)
23.   Teachers and school staff generally continue to work in the European Union without a COVID-19 vaccination and are subject to regular testing. The State Government and my employer's denial and restrictions on my basic liberties has affected my mental health. The current orders by the State Government and my employer have moved well past the minimum necessary to achieve public health aims and into the realm of deprivation.
24.   It is my view that it is not proportionate, reasonable or necessary to lock myself out because I decided to be unvaccinated and the State Government and my employer have removed my ability to work and contribute to society.
33.    I am strongly opposed to the vaccine mandate. I am aware of studies around the world that have looked at the rate of transmission of COVID-19 in schools.”
Ms Martsoukos concluded her statement with a four-page chronology.
In her second statement Ms Martsoukos gave some particularity to her actions.
She said at [4][10] that she received an email of 27 August 2021 stating that all NSW Public School and preschool staff were “required to be fully vaccinated by 8 November 2021.” Both emails were from “Georgina Harrisson the Secretary of the DET.”
[10][10] ARD page 31.
At [5] she referred to another email received on the same day that notified her that “double doses of COVID vaccinations would be mandatory for any staff on school sites from 25 October and all school staff from 8 November.” Ms Martsoukos said:[11]
[11] ARD page 32.
“I was shocked, anxious and feeling forced to have a trial drug injected into my body and worried about what it would do to me. I am greatly concerned this trial drug would cause in my body.” (As written.)
Ms Martsoukos said she was “scared of the effects of the injection in short term and long term.” She said further, amongst other things, at [7]:[12]
[12] ARD page 32.
“…I was starting to feel angry between being forced to choose between my livelihood and my health over a trial drug that has not data on immune compromised subjects.”
At [8] Ms Martsoukos said:
“….. I felt I had no option as with all the emails and conversations were forcing my hand as if I declined to be vaccinated I was informed my position would not be held for me [sic]….”
Ms Martsoukos then repeated the list of symptoms she had set out in her earlier statement, giving some further context for each complaint. She also repeated her explanations as to why she refused to comply with the Public Health Order.

Mr Tim Bordado

Mr Bordado made a statement dated 31 January 2022. He was Principal of James Meehan High School at Macquarie Fields. Mr Bordado stated that Ms Martsoukos began her employment with the Department on 4 February 1997. He said that he had a number of conversations with the applicant which indicated that she was “having difficulty in making a decision towards whether to get vaccinated.” These conversations occurred in “the lead up to 8 November 2021.”
Mr Bordado stated that the applicant was getting advice and felt that she was in a very difficult situation and feeling quite stressed, as she was aware of the departmental requirements. She was also concerned about confidentiality and the possible disclosure of her personal medical information.
Mr Bordado informed the applicant that she would be supported in working from home during the period of time leading to 8 November 2021. He stated however that on 1 November 2021 a request for sick leave until 15 November 2021 was submitted and approved. Mr Bordado said:[13]
[13] Reply page 83.
“On the 3rd of November Evgenia attempted to submit a medical exemption document through the VACS Attest system which in consulting with Health and Safety I could not confirm as the practitioner who issued the exemption was not registered (as per advice received from DoE Covid Vaccinations).”

34.Mr Bordado noted that further requests for sick leave were made and approved. He said:
“Evgenia has not communicated to me any concerns in regards to bullying or harassment by her employer. The communication in regards to the need to become double vaccinated was managed centrally by the department from the 25th of October onwards with any letter(s) of direction issued directly to the non -compliant employee by the department. I have always ensured maximum professionalism, cordiality, understanding and support in all my dealings With Evgenia particularly when having the necessary conversation to make it clear that department employees would not be able to be onsite unless I had sighted and confirmed the required double vaccination status.
…..
There are no disciplinary, conduct or performance issues in relation to this worker”.

Dr Paul Wood

As indicated above, Dr Wood was the Executive Director, Educational Standards, with the Department as at the date of his statement of 31 May 2022.[14] Between July 2021 and February 2022 Dr Wood had been Executive Director, COVID – 19 Taskforce.
[14] Reply page 86.
Dr Wood advised that the NSW Government and NSW Ministry of Health announced a mandate for COVID-19 vaccination for education workers on 27 August 2021. The mandate required for education workers to be fully vaccinated by 8 November 2021.
Dr Wood said that on the morning of 27 August 2021 the Department emailed all school-based staff “which advised of the NSW Government’s intention to introduce the COVID-19 vaccination mandate.” Dr Wood said:
“… We wanted to ensure our staff were kept updated as the situation was moving quickly and a public announcement was due to be made by the NSW Premier had 11.00am that day…”
Dr Wood advised that the Department provided on its intranet service a page entitled Frequently Asked Questions related to COVID-19 vaccinations. This page was used “to ensure staff were kept up-to-date regarding the implementation of the vaccine mandate including priority access for vaccination bookings, special leave arrangements and the relevant dates.”
Dr Wood said that on 23 September 2021 the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 was made by the Minister of Health. “This gave effect to the vaccination mandate first announced by the NSW Government on 27 August 2021.”
Dr Wood detailed further arrangements were made by the Department and said that on 18 October 2021 two Determinations by the Department were issued under the appropriate legislative authority which required that employees of the Department had to be vaccinated with two doses of a COVID-19 vaccine and to provide proof in that regard, “unless they are unable to be vaccinated because of a medical contraindication.”
Dr Wood advised further that on 22 October 2021 the Department issued a Direction that employees who failed to comply with the requirement that they attest there vaccination status would face disciplinary action. An email on 1 November 2021 from the Department advised employees that the deadline of 8 November 2021 was approaching, and that failure to comply could result in disciplinary action. On 12 November 2021 the Department introduced a policy regarding non-compliance into its Management of Conduct.

The Department Documentation

The following are relevant documents.
Email 27 August 2021 10.52[15]
[15] ALD page 10
“From: Georgina Harrisson, Secretary <[email protected]>
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”
Email 27 August 2021 11.02[16]
[16] ALD page 13. This was a copy of the 10.50. email with an added recipient< Susan Roberts at the Department.
Email 27 August 2021 12.50[17]
[17] ALD page 15.
“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
• … from (photocopy obscured) October and for all school staff from 8 November 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”
Email 2 September 2021 2.32 PM[18]
[18] ALD page 18, reply page 6.
“From: Deputy Secretary, Chief People Officer < DepSec.Chief
[email protected] >
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. 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 I 8 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”

Public Health Order 23 September 2021

On 23 September 2021 the NSW Government promulgated the Public Health (COVID-19) Vaccination of Education and Care Workers) Order 2021.[19] It explained the reasons for its actions in a section, “Grounds for concluding that there is a risk to public health, saying:
“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-Co V-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.”
[19] Reply page 13.
The Order stated, inter alia:
“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
•been issued with a medical contraindication certificate, or
•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-
evidence from the Australian Immunisation Register that the worker has had 1 dose of a COVID-19 vaccine, and
evidence of an appointment to receive a COVID-19 vaccine.”

Vaccination Guidelines 5 October 2021

The Department issued COVID-19 Vaccination Guidelines on 5 October 2021.[20] This document comprised 13 pages of information. Under the heading “Non – compliance” the following appeared from clause 8.2:
“It is the individual's responsibility to ensure they have received both doses of the COVID-79 vaccination by 8 November 2027 and meet the requirements outlined in these guidelines.
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 78 October 2027 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 2027. From 8 November 2027 onwards all staff are required to comply with the Public Health Order.”
[20] Reply page 19.

Determination 18 October 2021

On 18 October 2021 the respondent issued a Determination under the Teaching Service Act 1980. Relevantly, it read:[21]
“4.2 All employees who work, or will be required to work, on a Department site to support the staged return of student cohorts to a Department school are required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 18 October 2021.”

Guidelines 12 November 2021

[21] Reply page 12.

MANAGEMENT OF CONDUCT RELATED TO NON-COMPLIANCE WITH COVID-19 VACCINATION REQUIREMENTS GUIDELINES

The Department published these guidelines on 12 November 2021.[22] Relevantly, Chapter 5.1.2 provided:
[22] ALD page 23. Reply page 31.
“5.1.2 Defining misconduct and COVID-19 non-compliance
Misconduct is defined in the Acts 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.”

MEDICAL EVIDENCE
Dr Boulton

Dr Matthew Boulton, consultant psychiatrist, was retained by the insurer and reported on 31 March 2022.
Dr Boulton took a consistent history (including that Ms Martsoukos had been subjected to bullying and harassment for five years prior to her receipt of the email on 27 August 2021). He noted:
“… [Ms Martsoukos] remarked that at 11 AM when the mandate was announced , she had a strong physical reaction Feeling like she was pushed into a corner …”
Dr Bolton noted that Ms Martsoukos had been speaking to doctors about vaccine safety and that she had been told she should not get vaccinated “given how anxious she was.” Dr Boulton reported that Ms Martsoukos’ main issue with the vaccination mandate “was around the lack of choice.” He recorded:[23]
“… She said at times she felt that the process was ‘almost a mockery’, saying that she felt pushed into a corner by the approach they were taking. She was told that ‘you would either do this for you would have no job’. She thought that over the prior two years teaching had been manageable with the Delta variant and could not understand why things had become so different with Omicron.”
[23] ARD page 4.
Dr Boulton advised:[24]
“It appears that Mr Martsoukos has previously felt resilient enough to deal with the stresses at her current school and has not previously needed psychiatric review. She did take an appropriate amount of time off after being allegedly assaulted by a student. Predominantly this current injury occurred around the time of the vaccine mandate. Her description of symptoms and her subsequent mental health problems can be chronologically marked from that date.”
[24] ARD page 11.
Dr Boulton diagnosed a major depressive disorder with anxious distress and found her unfit for work.
Dr Boulton was asked his opinion as to whether reasonable action taken and proposed to be taken by the employer was the whole or predominant cause of Ms Martsoukos’s injury. Dr Boulton responded:
“I cannot comment on whether or not this was reasonable action. My role here is to comment on psychiatric diagnosis and cause.”

Dr Himalee Abeya

Dr Abeya is a consultant psychiatrist who assessed Ms Martsoukos’ fitness for work. He was retained by Mr Chris Hall from the Health and Safety Directorate. Dr Abeya reported on 13 January 2023[25] and 13 June 2023.[26]
[25] ARD page 37.
[26] ARD page 47.
Dr Abeya took a consistent history, also noting that Ms Martsoukos was experiencing workplace stress when she realised that the Department would not treat her emails to them “in a reasonable manner when it came to the vaccine mandate.”[27] This occurred whilst Ms Martsoukos was working from home:
“… She said this too had been quite difficult and would have contributed further to her resilience breaking down. She said with the lockdowns there were continued changes of working from home and then being back at school. She said it had been on a day that she had been homeschooling that she heard about the mandate….
….
….the situations appears [sic] to have been compounded by the uncertainties related to the lockdown and ultimately the vaccine mandate. Choosing not to become vaccinated had resulted in not being able to go into school and she reported feeling that they were poorly treated in how the unvaccinated teachers were viewed at the time.”
[27] ARD page 41.
Dr Abeya found Ms Martsoukos to be “temporarily unfit,” whilst she received more intensive treatment.
Dr Abeya’s report of 13 June 2023 confirmed his earlier opinion. He thought then that Ms Martsoukos had no capacity to return to her substantive role as a High School English Teacher.

Dr Andy Hsu

Dr Hsu was Ms Martsoukos’ general practitioner (GP). Some material was lodged from the Caritas Medical Centre in his name.
In his report of 4 November 2021 Dr Hsu stated he had “looked after Evgenia since March 2021.”[28]
[28] ARD page 73.
On 7 September 2021, he referred Ms Martsoukos to “nominated psychologist” for treatment. Dr Hsu wrote:[29]
“Thank you for seeing Mrs Evgenia Martsoukos, age 48 yrs…..under the MHTP. Evgenia has been experiencing worsening symptoms of anxiety and depression and would like to see you for review. She works as a teacher and has expressed concerns about the increasing pressure of her job. She has a supportive family and network of colleagues and is motivated to start seeing you for therapy sessions.”
[29] ARD page 74.
A Mental Health Plan was entered into the same day.
No clinical notes from Dr Hsu’s practice were before the Commission.

SUBMISSIONS
Mr Dodd

Mr Dodd referred to the medical evidence from Dr Boulton and Dr Abeya that established that Ms Martsoukos had suffered a psychological injury which had caused her to have no current work capacity. Mr Dodd noted that whilst Ms Martsoukos had been suffering some stress prior to receipt of the emails on 27 August 2021, Dr Boulton, the respondent’s medical expert, had found this stress did not amount to a psychological injury.
Mr Dodd submitted that there was no expert evidence regarding whether the injury had been wholly or predominantly caused by the actions of the respondent, referring to Hamad v Q Catering.[30]
[30] [2017] NSWWCCPD 6.
Mr Dodd submitted that the respondent had also not established that the respondent’s actions were disciplinary in nature in any event. He referred to authority by Geraghty J in that regard. Mr Dodd submitted that at the time Ms Martsoukos ceased work as a result of her injury there had been no suggestion of any allegation of inappropriate conduct by her, or of any inkling that there would be problems arising therefrom.
Mr Dodd submitted also that the respondent had failed to prove that its actions were concerned with discipline because there were no proceedings or action being brought against Ms Martsoukos at the time she suffered her injury.
Ms Martsoukos’ response to the email of 27 August 2021 had been immediate, Mr Dodd submitted. In her statement and the histories she gave to Dr Boulton and Dr Abeya she was consistent in this regard. Mr Dodd submitted that the content of the email merely referred to a proposed Public Health Order and a proscription relating to attendance at school. There had been no reference to any disciplinary action in those emails, he argued. In that regard he referred to the email from the Department to all staff dated 2 September 2021.
Mr Dodd argued that the first occasion the respondent raised the question of disciplinary action was in the Management of Conduct document issued on 12 November 2021. However, Mr Dodd contended, this did not apply to Ms Martsoukos because she had already left work. The relevant issue was the circumstances which pertained at the time to Ms Martsoukos’ particular situation. He argued that whilst it was reasonable for Ms Martsoukos to have been advised that mandatory vaccinations were to be required on 27 August 2021, there had been no inkling that the mandate would result in actions that were disciplinary. This approach had not been reasonable, he submitted.
Mr Dodd submitted that there were options open to the Department to cater for those who for their own reasons were unable to comply with the mandate in any event. He submitted that the Department could have arranged for them to continue to work by remote teaching, or it could have suspended them for a period of time, or it could have found other work for them to do such as curriculum work or school of the air.
Mr Dodd referred to Dawking v Secretary (Department of Education)[31] a decision of Member Brett Batchelor, currently on appeal to the Court of Appeal, having been upheld at Presidential level. He submitted that the approach taken by the respondent in that case was similar to its approach in the present case. It consisted of a “blunderbuss” approach to the issues, and a careful consideration of the issues was required in order to conduct a s 11A defence. The approach by the respondent demonstrated that it had failed to comply with the section, the onus for which lay on it, I understood Mr Dodd to submit.

Mr Grant
[31] [2022] NSWPIC 611.

Mr Grant confirmed that the respondent relied on s 11A. The injury had been shown to be wholly or predominantly caused by the respondent’s actions regarding discipline, such actions having been reasonable, he submitted.
Mr Grant referred to Webb v State of New South Wales[32] relying on the dicta of DP Wood at [139]. He submitted that the whole process involving the employer’s conduct had to be taken into account in assessing whether its action constituted “discipline.” In the present case that conduct included its actions from 27 August 2021 to Ms Martsoukos’ cessation of work.
[32] [2019] NSWWCCPD 50.
Mr Grant submitted that there was expert evidence from Dr Boulton that satisfied the respondent’s onus to establish that the injury had wholly or predominantly been caused by the respondent’s actions.
Mr Grant said that it was clear that the email of 27 August 2021 presaged disciplinary action. Ms Martsoukos was an intelligent and experienced teacher. She was able to take from the emails of 27 August 2021 that failure to comply with the looming Public Health Order obviously would carry significant repercussions in the form of a threat to her livelihood.
Mr Grant submitted that Mr Bordado gave a clear causative history. Mr Grant referred to the s 78 Notice of 21 January 2022 and the explanation given for Ms Martsoukos’ obligation to comply with the Public Health Order. It was an obvious imperative that the children came first, he said.
Mr Grant argued that at the time of these events there was a different perception in the community about the pandemic. He adopted the suggestion that the Public Health Order did not give any choice as to whether it should be complied with or not. It had been made at a time of an international emergency regarding the pandemic.
Mr Grant submitted that Ms Martsoukos was a “highly educated” person who was aware of the consequences if she did not comply. Mr Bordado said she went off on sick leave when she realised she could not gain an exemption.
Mr Grant argued that the strict definition of the action of discipline earlier adopted by Neilsen CCJ is no longer applicable, and that the whole process had to be taken into account.

Mr Dodd in reply

Mr Dodd submitted that Mr Grant was incorrect in his summation of the effect of Webb. He referred to the facts of Webb, and submitted that they were distinguishable from the present circumstances. He submitted that the cross-examination of Dr Wood demonstrated that teachers doing remote learning from home were a cohort that did not need to be vaccinated and that therefore the mandate for all department staff was unreasonable.
He submitted that as at the pleaded date of injury, 27 August 2021, the report of Dr Abeya demonstrated that Ms Martsoukos was working from home. As at that date, he argued, the email had nothing to do with discipline. It was not until the publication of the Order itself on 23 September 2021 and the vaccination Guidelines of 5 October 2021 that demonstrated that there was a suggestion that refusal to comply with the mandate would result in disciplinary action.
Mr Dodd argued that Mr Grant’s submission that Ms Martsoukos must have realised that disciplinary action would follow was mere speculation.
Mr Dodd reiterated his submission that the respondent had not complied with the requirement set out in Hamad.
He again submitted that the cross-examination of Dr Wood revealed options that the Department could have exercised in favour of those who for their own reasons could not be vaccinated. Mr Dodd noted that Dr Wood was unable to answer why those options had not been made available, answering that a Mr Currie had that responsibility, and yet no evidence had been called from Mr Currie.
In discussion about the decisions of Dawking and Bjekic[33] Mr Dodd agreed that Bjekic had been upheld on appeal to the Presidential level, and that Dawking was on appeal to the Court of Appeal.

Mr Grant (by leave)
[33] Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2022] NSWPIC 214.

Mr Grant responded that Dr Boulton’s evidence had complied with Hamad, and that the word “mandate” appearing in the email of 27 August 2021 was a sound basis for inferring that Ms Martsoukos would infer that disciplinary action was an integral part of the mandate.

DISCUSSION

Section 4 of the 1987 Act provides relevantly:
"‘injury’ -
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means-
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,…”
As indicated, the respondent conceded that Ms Martsoukos had suffered a psychological injury, and the resolution of this dispute accordingly depends on whether the respondent has complied with the provisions of s 11A of the 1987 Act. Section11A provides relevantly:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

The onus is on the respondent to make out the elements of its defence.[34] The relevant elements in Ms Martsoukos’ case are:
·        Has the respondent established that Ms Martsoukos’ injury was wholly or predominantly caused by the actions of the respondent?
·        If so, do they relate to discipline?
·        What were those actions taken or proposed to be taken?
·        Were they reasonable?

Wholly or predominantly?
[34] See Department of Education and Training v Sinclair [2005] NSWCA 465 et al.

In Hamad DP Michael Snell said at [88]:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
As noted by the learned DP, the need for medical evidence regarding the causation issue will depend on the facts and circumstances of each particular case. In Ms Martsoukos’ case there is no evidence to suggest that there was any other cause for her injury than the receipt of the email on 27 August 2021. There was certainly evidence that might have been relevant to the issue, as both Dr Boulton and Dr Abeya took the same history of some vulnerability prior to her receipt of that email. Ms Martsoukos referred to it as well, describing “anxiety and trauma” over a five year period prior to her receipt of the impugned email. I have above reproduced [9] of her statement and set out the numerous issues that had been then causing her symptoms.
Similarly, Ms Martsoukos’ GP Dr Hsu noted that he had been “looking after” her since “March 2021,” which perhaps might imply she was under treatment for her pre-existing condition.
Notwithstanding, Dr Boulton, who was the medico-legal expert retained by the insurer, also considered this history, as indicated above. To repeat, he said:
“It appears that Mr Martsoukos has previously felt resilient enough to deal with the stresses at her current school and has not previously needed psychiatric review. She did take an appropriate amount of time off after being allegedly assaulted by a student. Predominantly this current injury occurred around the time of the vaccine mandate. Her description of symptoms and her subsequent mental health problems can be chronologically marked from that date.”
In these circumstances Dr Boulton’s opinion supplies the medical evidence required to establish that the respondent’s actions were predominantly the cause of Ms Martsoukos’ injury. There was no expert opinion lodged by the applicant.

The actions alleged by the applicant

The actions pleaded in the ARD were:
“The injury occurred as a result of events arising out of, or in the course of employment concerning the mandate to be vaccinated on 27/08/2021 to 08/11/2021.”
The date of injury was pleaded as “27/08/2021.”
Mr Dodd sought to establish that the actions of the respondent could only be viewed within the knowledge of Ms Martsoukos at the time she received the email on 27 August 2021. The pleadings would appear to indicate a contrary intention, as it referred to “events” concerning the mandate from 27 August 2021 to 8 November 2021. Mr Dodd said in reply that he was relying on s 4(a) or 4(b) (i) or (ii).
Be that as it may, there was a good deal of argument that Ms Martsoukos could not have known that the respondent’s actions on 27 August 2021 were concerned with discipline.

Discipline

In Webb DP Elizabeth Wood said at [139]:
“I have discussed the authorities in Heggie and Sinclair above, that require 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 of the 1987 Act. In accordance with those authorities, the initial meeting on 21 April 2017 (which was agreed to be the cause of the appellant’s psychological injury) cannot be considered in isolation from the respondent’s action in investigating the allegation, when determining whether the action can be characterised as action with respect to discipline.”
At [141] DP Wood said:
“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). Discipline can include offering support and training to improve performance (Soutar). As Snell AP determined in Mascaro, 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 as the narrow definition of discipline, chastisement, and actions implementing adverse consequences for inappropriate behaviour in the workplace will also be matters of discipline.”
The present circumstances are consistent with the latter description, save that the adverse consequences were not implemented because Ms Martsoukos had become ill before 8 November 2021, which was the date by which she was required to comply with the Order. She remained on sick leave until she was medically retired on 17 August 2023. Accordingly no disciplinary action was taken. However the basis of the respondent’s case is that Ms Martsoukos’ failure to comply with the vaccine mandate was inappropriate behaviour, and the proposed actions set out in the respondent’s evidence in order to implement adverse consequences were accordingly a matter of discipline.
I do not accept Mr Dodd’s contention that Webb can be distinguished because of its facts. He submitted that the present facts did not correlate with the examples given by DP Wood at [141], and compared each sentence of that paragraph with the evidence before me. He did not, however, consider the more narrow definition that actions implementing adverse consequences for inappropriate behaviour in the workplace were matters of discipline that I have just referred to.
DP Wood revoked the Member’s decision because although the employer’s actions had been reasonable, they were not undertaken for any of the purposes she had discussed in [141]. It follows that Mr Dodd’s submission that the respondent’s actions were to be isolated to the state of affairs that pertained when the email was received is rejected. The subsequent actions taken are also relevant in considering discipline.

The actions of the respondent

The documentation regarding the respondent’s actions I have set out verbatim above. The respondent sent two emails dated 27 August 2021. To repeat, the first, timed at 10.52AM, included under “what you need to know” the following:
“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.”
In the body of the email the following appeared:
“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.”
The email timed at 12.50 contained an update in the “what you need to know” segment. It included:
“•      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 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 (obscured by photocopying) from (?)5 October and for all school staff from 8 November.
(obscured) vaccine is available to them as soon as possible.”
In the body of the email further detail was explained:
“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.”
In her chronology attached to her statement of 13 December 2021 Ms Martsoukos acknowledged that she knew from the first email that the Premier would be announcing “mandatory vaccinations.”
The word “mandatory” is commonly synonymous with something that is compulsory.[35] 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.
[35] See e.g. Google definitions. The Concise Oxford Dictionary 5^th edition defines the word as “conveying a command, compulsory.”
The subsequent actions of the respondent were concerned with the enforcement of the mandate. Ms Martsoukos referred to an email she received on 29 August 2021 from Mr Bordado which she said was “reiterating [the respondent’s] plan for return to school and too, mentioning that teachers must be fully vaccinated to carry out the functions associated with our role.”[36]
[36] ARD page 25.
The email dated 2 September 2021 from the Department, as indicated above, stated under the heading “updated vaccination information” the following:
“…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.”
It also stated under “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.”
The other documents I have reproduced above under “The Department Documentation” speak for themselves. The emails demonstrate that the respondent notified its employees in detail of the proposed orders by the Department of Health, and gave timely warnings of what those orders would entail. The evident purpose in the issue of the emails was to enable its staff to prepare for the deadline of 8 November 2021 and to emphasise that all staff, including Ms Martsoukos, would be required to receive two doses of COVID-19 vaccination by that date.
The actual Public Health Order was issued on 23 September 2021. It explained why the Order was being made, referring to the international and national concern at the outbreaks of COVID-19, which was a potentially fatal and highly contagious condition, and which had been confirmed within NSW and other Australian jurisdictions.
It also provided that education and care workers “must be vaccinated.” The reason for the Government’s concern was obvious, and was spelt out in the s 78 Notices of 21 January 2022[37] and 8 March 2022:[38]
“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.”
[37] Reply page 4.
[38] ARD page 128.
The subsequent issue of the Vaccination Guidelines of 5 October 2021 made it quite clear that unless there was a medical contraindication, staff would not be allowed to attend school sites, and after 8 November 2021 were required to comply with the Public Health Order.
The Determination under the Teaching Service Act of 18 October 2021 required vaccination evidence, or a medical contraindication certificate, and the Management of Conduct document dated 12 November 2021 made non-compliance with COVID-19 Vaccination Guidelines, misconduct.

Were the actions reasonable?

This documentary evidence demonstrates that the respondent took care to notify Ms Martsoukos (and all staff) that vaccination was to be made compulsory in plenty of time for its staff (including Ms Martsoukos) to organise the necessary certification.
Taking the whole process involved in the respondent’s actions into account, the documentary evidence constitutes proof of those actions. I reject Mr Dodd’s submission that because Ms Martsoukos went off work before the deadline of 8 November 2021, the respondent’s actions no longer applied to her, and her injury accordingly had not been caused by those actions.
In the first place, the words of the Statute speak of “reasonable action taken or proposed to be taken.” (Emphasis added.) The actions of the respondent as set out above were concerned with action proposed to be taken in regard to the enforcement of the Public Health Order. Its action in notifying all its staff that this announcement was to be made by the Premier on 27 August 2021 was reasonable, as it alerted staff to a significant development in the response of the NSW Government to the COVID-19, compliance with which was going to necessitate some inconvenience and organisation.
Secondly, the pleadings in the ARD included in the alternative that Ms Martsoukos’ injury had been caused by either the contraction or the aggravation of a disease. The onus was on the respondent therefore to show that the cause of Ms Martsoukos’ injury (to paraphrase) was its actions. In meeting that onus it was entitled to assume that it was the whole of its conduct that the applicant alleged had been the cause when it pleaded that “the injury occurred as a result of events arising out of or in the course of employment concerning the mandate to be vaccinated commencing on 27 August 2021 to 8 November 2021.”
Thirdly, as I have found above, the issue of “discipline” in any event requires the whole process to be taken into account, as a matter of law.
I have already found that Ms Martsoukos would have realised that the emails of 27 August 2021, speaking as they did of NSW public school staff being “required to be fully vaccinated,” and of the Premier announcing “mandatory double doses of vaccination,” were indicative of a disciplinary process, as it followed that if a compulsory requirement were not followed, then there would be consequences of a disciplinary nature.
The enquiries Ms Martsoukos listed in her chronology demonstrated that she was in contact with the Minister of Education on 3 September 2021, and indeed that she “wrote to NESA with a complaint re mandatory vaccination,”[39] These communications were not before me, but they reveal the concern by Ms Martsoukos at the mandatory nature of the requirement to vaccinate. In that chronology she also referred to her communications with Mr Bordado.
[39] ARD page 25. I presume that ‘NESA’ stands for NSW Education Standards Authority.
Mr Bordado related these communications in his statement, as related above. He did not in terms define when it was that Ms Martsoukos spoke to him about the difficulties she was having in making a decision towards whether to get vaccinated, other than it was “in the lead up to 8 November 2021.” Nor did he define what those difficulties were. However, Ms Martsoukos did take two weeks sick leave from 1 November 2021, and on 3 November 2021 Mr Bordado rejected her medical exemption certificate. It seems Ms Martsoukos remained off on sick leave and did not return to work, until she was medically retired. Mr Bordado’s response to Ms Martsoukos’ anxiety about the process was reasonable. Ms Martsoukos did not allege that he acted unreasonably in rejecting her application for a medical vaccine contraindication exemption, and no submissions were made impugning Mr Bordado’s actions.
Mr Dodd made some submissions to the effect that the actions of the respondent were unreasonable because, at the time Ms Martsoukos received the emails of 27 August 2021, she was working from home. Dr Abeya gave the only reliable history, which was that with the lockdowns there were continued changes of working from home and then being back at school. Dr Abeya recorded that it had been on a day she had been homeschooling that Ms Martsoukos heard about the mandate. It was clear from the documentation Ms Martsoukos received that there would be a return to face-to-face teaching and Ms Martsoukos’ whereabouts when she received the emails is neither here nor there.

Ms Martsoukos’ arguments

Mr Dodd relied on the transcript of his cross-examination in Davis to support his contention that the respondent’s actions regarding discipline had not been reasonable. The cross-examination evinced responses from Dr Wood that it was a Mr Daryl Currie who was dealing with the Management of Conduct guidelines that were dated 12 November 2021, and which stated that failure to comply with the vaccination requirement would amount to misconduct by any member of the respondent’s staff.
Mr Dodd’s questions were predicated on a perceived distinction between the terms of the Public Order itself, and those of the vaccination guidelines dated 5 October 2021. The Public Order, as indicated above, stated at [4] that education and care workers “must be vaccinated.” However, Clause 4(1) stipulated relevantly:[40]
“The Minister directs that an education and care worker must not carry out relevant work on or after 8 November 2021….”
[40] Reply page 17.
The term “relevant work” was defined in Clause 2 to relate to:
(a) work at a government school or non-government school…
The COVID-19 vaccination Guidelines of 5 October 2021 noted the specific terms of the Public Health Order.[41] The Guidelines defined the employees to whom it applied:
“3.1 These procedures apply to persons employed or engaged, or who are seeking to be employed or engaged, on school and early childhood sites with the NSW Department of Education.”
[41] Reply page 19.

Mr Dodd commenced his cross-examination by taking Dr Wood to paragraph 6 of his statement dated 31 May 2022.[42] The transcript shows:[43]
“And, sir, can I just take you to your statement that you've got in front of you.
Yes.
If you can just - - -?---
- - - .. (not transcribable 00:06:10) .. please. If I can take you to paragraph 6 where you there depose to the mandate that was introduced on 25th of August, 2021 requiring that all education workers be fully vaccinated against Covid-19 by the 8th of November, 2021, is that right? --- Correct.”
[42] Dr Wood’s statement was lodged by the respondent at Reply page 86.
[43] ALD pages 47/48.
Mr Dodd then embarked on a number of questions designed to evince from Dr Wood that there were a number of positions available to Departmental staff that did not require them to actually work at a school, and that it was therefore unreasonable to require people to be vaccinated if they were not working in schools.
Paragraph 6 of Dr Wood’s statement read:
“6. The NSW Government and NSW Ministry of Health announced a mandate for COVID-19 vaccination for education workers on 27 August 2021. This mandate required that all education workers be fully vaccinated against COVID-19 by 8 November 2021.”
Mr Dodd referred to paragraph 7 in which Dr Wood said:
“7. In the morning of 27 August 2021 the Department sent an email to all school based staff which advised of the NSW Government's intention to introduce the COVID- 19 vaccination mandate and provided what information we had at that time. We wanted to ensure our staff were kept updated as the situation was moving quickly and a public announcement was due to be made by the NSW Premier at 11.00am that day. A copy of this email is attached...”
The transcript recorded:[44]
“And in paragraph 7 you refer to an email that was sent out to all staff which is attachment 1? --Yes.
And, sir, is this the case that this was a, if I could 15 call it, blanket email sent to all staff, is that correct?---Yes.
That was whether they worked at schools or not, is that right?---The email would've been sent through our email system so - - - So it would've been sent to all staff?---I believe it was intended for all school staff.
25 Well, you indicate in your - yes, indeed, at the beginning of paragraph 7 it says - you refer to it as school-based staff, is that right?---So all school-based
staff would've been staff employed in schools.”
[44] ALD page 48.
The cross-examination attempted to suggest that there were other things a non-compliant teacher could have done without being at a school, which Mr Dodd described in his submissions in this case as being remote teaching from home, suspension for a period of time, curriculum work or school of the air work.
The difficulty with Mr Dodd’s line of questioning was that paragraph 6 of Dr Wood’s statement did not reflect the terms of the emails themselves. As indicated above, the email timed at 10.52 on 27 August (not 25 August as Mr Dodd suggested) 2021 stated that the vaccinations were a critical part of the Covid-safe “return to face-to-face learning”, and that “all NSW public school and preschool staff would need to be vaccinated to allow for a safe return to face-to-face learning.”
Moreover, the terms of the Vaccination Guidelines of 5 October 2021 repeated the terms of the Public Health Order, and did not suggest that the guidelines applied to staff who did not undertake work at a government school.
As Mr Dodd submitted, and Mr Grant agreed, the onus is on the respondent to establish the application of s 11A. I am satisfied that it has done so to a prima facie level, and if the issues raised by Mr Dodd were to overcome that prima facie case, more was required than a cross-examination in another case which did no more than raise possibilities based on unreliable documentation. There is no suggestion in the evidence that Ms Martsoukos applied for any non-school based position, and the thrust of her case is that it was the deprivation of her opportunity to teach in school by the mandate that has caused her injury.
In Bjekic, whilst considering whether the applicant had established that he had suffered an injury, I said:
“46. At the time of these events, no less than now, the world was in the grip of an unprecedented pandemic. To protect their populations, most governments passed Covid orders that severely restricted the free movement of people. One of the governments to enact such restrictive regulations was the Government of New South Wales. It was the view of those responsible for the safety and protection of the populace that emergency regulations had to be promulgated as a matter of public policy. These regulations amongst other things mandated the wearing of personal protective equipment in hospitals, including that where Mr Bjekic was working.”
Those comments also apply to the vaccination mandate of the Public Health Order of 23 September 2021, except that the pandemic has now, in 2024, eased its grip to an extent. The Public Health Order itself spoke of the emergency, noting the highly contagious and potentially fatal nature of COVID-19, and the ongoing risk of its spreading in New South Wales. The protection of children was of paramount importance and the NSW Government empowered the Department to do so by virtue of the Public Health Order. Neither the Order, nor the directions issued by the Department as a result, required vaccination where a care worker was not carrying out work in a government school.
Accordingly I am satisfied that the actions of the respondent as discussed were reasonable.

Decision

For these reasons I find that the psychological injury to the applicant has been predominantly caused by the reasonable actions taken by the respondent regarding discipline.
There is an award for the respondent.

[2024] NSWPIC 16

11 January 2024