Pemberton v Woolstar Pty Limited - [2025] NSWPICPD 34

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Pemberton v Woolstar Pty Limited [2025] NSWPICPD 34
APPELLANT:	Lee Pemberton
RESPONDENT:	Woolstar Pty Limited
INSURER:	Employers Mutual Limited
FILE NUMBER:	A1-W9606/23
PRESIDENTIAL MEMBER:	Acting Deputy President Paul Sweeney
DATE OF APPEAL DECISION:	11 April 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 9 May 2024 is revoked. 2. The matter is referred to a different non-presidential member for determination of whether the appellant’s entitlement to compensation for psychological injury is extinguished by the operation of section 11A(1).
CATCHWORDS:	WORKERS COMPENSATION – psychological injury resulting from COVID-19 mask and vaccination policy; failure to respond to material argument: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 distinguished; Wang v State of New South Wales [2019] NSWCA 263 considered and applied; sufficiency of reasons for evaluative decision regarding reasonableness: rule 78 of the Personal Injury Commission Rules 2021; St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64 considered and applied; failure to find date of injury; consequences of failure to adduce medical evidence on issue of whether injury was wholly or predominantly caused by actions within s 11A(1) of the Workers Compensation Act1987; Hamad v Q Catering Limited [2017] NSWWCCPD 6 distinguished
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Dodd, counsel
McCabe Partners Lawyers
Respondent:
Mr B Jones, counsel
BBW Lawyers
DECISION UNDER APPEAL:	Pemberton v Woolstar Pty Ltd [2024] NSWPIC 241
MEMBER:	The Honourable L Drake
DATE OF MEMBER’S DECISION:	9 May 2024

INTRODUCTION

This appeal concerns the application of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) to a claim for compensation for psychological injury arising from an employer’s COVID-19 policies.
Lee Pemberton (the appellant) was a long-term employee of Woolstar Pty Ltd (the respondent). At the time of the outbreak of the COVID-19 pandemic, he was employed at the respondent’s Wyong distribution centre (Wyong). On 4 September 2020, the respondent issued a directive that employees at Wyong wear face masks while at work. The appellant experienced nasal symptoms and headaches while wearing a mask. On 5 September 2020, he produced a medical certificate to the respondent and was granted an exemption from the mask policy.
On 5 January 2021, he was informed by a manager that the respondent would no longer recognise medical exemptions. He was asked to wear a mask or leave the premises.[1] He chose to cease work. Thereafter, the appellant did not work during periods when the wearing of masks at Wyong was compulsory.
[1] Application to Resolve a Dispute (ARD), p 14.
Following the reintroduction of the mask policy on 24 June 2021, the appellant ceased work.[2] He did not return to work for the respondent. On 14 January 2022, he was informed during a telephone conversation with an officer of the respondent that it was introducing a policy of compulsory vaccination. The appellant stated that he was not “comfortable to adhere to the policy”.[3]
[2] ARD, p 16.
[3] ARD, p 17.
On 1 April 2022, the appellant was advised by telephone that in view of his unvaccinated status the respondent was arranging a meeting with him to review his employment. The appellant did not accept the respondent’s invitation to provide further information concerning his vaccination status or attend the meeting which was scheduled for 8 April 2022.[4] On that day, he was informed that the respondent had terminated his employment.
[4] ARD, p 18.
The appellant has been diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood by a psychiatrist, Dr Ashwinder Anand.[5] He returned to casual employment with Leogate Pty Ltd on 23 March 2023.
[5] ARD, p 6.

CLAIM FOR COMPENSATION

On 25 January 2023, the appellant made a claim for compensation for “depression, anxiety, fatigue”[6] on the respondent. On 14 February 2023, the respondent’s claims manager, Employers Mutual Limited (EML), issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by which it denied that the appellant sustained an injury for the purposes of s 4 of the 1987 Act. Alternatively, it stated that if the appellant had suffered a psychological injury, it was wholly or predominantly caused by the respondent’s actions within s 11A of the 1987 Act.
[6] ARD, p 28.
By a review notice issued on 18 July 2023, the respondent’s solicitor reiterated the matters raised in the s 78 notice. The notice stated:
“We believe the employer took action with respect to ‘discipline’ and/or ‘dismissal’ insofar as terminating your employment for failure to adhere to its COVID vaccination policy”.[7]
[7] ARD, p 65.
The notice referred to the “recent appeal determination” in Secretary, Department of Education v Dawking[8] and stated that it was “distinguishable” from the facts in this case.[9] The notice concluded by stating that the appellant was “not willing to comply with the policy and left [the respondent] with little alternative but to terminate your employment on 8 April 2022.”
[8] [2023] NSWPICPD 23.
[9] ARD, p 66.
On 20 December 2023, the appellant lodged an ARD with the Personal Injury Commission (Commission). It claimed weekly payments of compensation from 9 April 2022. It stated that the relevant date of injury was 4 January 2021, the date on which the respondent first issued a directive to employees at Wyong to wear masks. Under the heading “Injury Description” the following appeared:
“Adjustment Disorder with Mixed Anxiety and Depressed Mood.
The injury occurred as a result of events arising out of, or in the course of, employment from 05/01/2021 concerning a direction to wear a mask and to be vaccinated commencing on and after 04/09/2020”.
When the matter came on for a conciliation conference and arbitration hearing before Member Drake on 26 March 2024, Mr Dodd, of counsel, appeared for the appellant and Mr Jones, of counsel, appeared for the respondent. The matter could not be resolved between the parties. An arbitration hearing proceeded on the documentary evidence. While the issues in dispute were not recorded at the commencement of the hearing, the respondent did not address on the issue of “injury”. It must, therefore, be accepted that the appellant suffered a psychological injury arising out of and in the course of his employment. The issue joined by the parties involved the application to the facts of s 11A(1) of the 1987 Act. In particular, whether the respondent could prove that its actions with respect to “discipline” and/or “dismissal” were the whole or predominant cause of the appellant’s psychological injury and, if so, that those actions were reasonable.[10]
[10] Transcript of proceedings 26 March 2024 (T), T 14.
In addressing this issue, Mr Dodd referred to the Presidential decisions in Secretary, Department of Education v Davis[11] and Hamad v Q Catering Limited[12] and argued that the circumstances of this case were similar to those in Davis.[13] It was not merely the termination of the appellant’s employment on 8 April 2022 that caused his psychological injury but “a series of [employment] events from September of 2020 right through till April 2022”.[14] To succeed on its defence, it was necessary for the respondent to precisely identify the actions with respect to discipline or dismissal which caused the injury. It had “failed to adduce any evidence” on the issue.
[11] [2024] NSWPICPD 18 (Davis).
[12] [2017] NSWWCCPD 6 (Hamad).
[13] T 13–14.
[14] T 14.15–16.
The appellant submitted that the respondent’s action in dismissing him was not reasonable given his 16 years’ “unblemished service”. He attacked the reasonableness of the mask policy and the vaccination policy and of the implementation of both policies. He suggested that the relevant deemed date of injury may be 9 April 2022, the first day of incapacity following the termination of the appellant’s employment.
The respondent submitted that the appellant’s psychological injury was wholly or predominantly caused by its implementation of the COVID-19 vaccination policy and the termination of the appellant’s employment. There was no suggestion on the evidence that the requirement to wear a mask was causative of the injury: “it is purely the vaccination”.[15] The evidence of Dr Anand was only consistent with injury being “referable to the cessation of his employment”.[16] Thus, the need for medical evidence to identify the causes of the psychological injury in accordance with the instruction in Hamad was inapplicable.
[15] T 27.
[16] T 33.
The respondent also addressed on reasonableness. The COVID-19 vaccination policy provided for reasonable exemption on religious or medical grounds. The appellant was unwilling to compromise “or seek any exemption”.[17]
[17] T 47.
Both counsel also addressed briefly on the issue of incapacity.

THE MEMBER’S REASONS

After stating the principles established by the case law in respect of s 11A(1), the Member stated:
“19. I have considered the reasonableness of the respondent’s decision to discipline and terminate the [appellant’s] employment in the context of the [parties’] dealings with each other regarding the application of the respondent’s COVID-19 policy, over time and at termination of employment, and have made the following findings.
20.    The [appellant’s] refusal to wear a mask whilst in the respondent’s employ was initially based on medical support that was short lived and flimsy. He was obdurate. The [appellant] was entitled to his own view. He did not want to do what he was asked to do for his own reasons and he therefore refused to comply to his detriment.
21.    During this period the respondent allowed the [appellant] to take leave without pay. This was a patient response in a situation where the respondent had no industrial obligation to provide that concession.
22.    The respondent offered the [appellant] alternate employment in a supermarket which would have avoided any obligation on him to wear a mask. This was a reasonable offer in the face of the [appellant’s] continued refusal to wear a mask in his usual place of work. Again, the respondent was not obliged to make this offer.
23.    The respondent's conduct in extending the time for the [appellant] to respond to the respondent's demand that he vaccinate, given that he had not received proper notice of the policy, was appropriate and reasonable.
24.    The [appellant] was given ample opportunity to comply with the respondent's policy and follow what I am satisfied was a reasonable management direction to return to work after vaccination.
25.    The [appellant’s] persistence in opposing his wearing of a mask and becoming vaccinated was a personal choice which he clung to in the face of his acknowledgement that it would cause him to be disciplined by termination of employment.
26.    The respondent’s policy was reasonable in the context of the pandemic and taking into account the health and well-being of its workforce.
27.    The respondent has established its defence pursuant to s 11 A.”
The findings concern the respondent’s direction that the appellant wear a mask and, subsequently, that he be vaccinated. The Member found that the respondent’s actions in respect of both requirements were reasonable. She issued the following determination:
“1. The respondent has established a defence pursuant to s 11A(1) of the Workers Compensation Act 1987.
2. Any injury and incapacity suffered by the [appellant] was wholly caused by the [appellant’s] failure to follow the respondent’s reasonable action with respect to discipline and dismissal, being a direction that he follow the respondent’s policy in relation to COVID-19 vaccinations.”
The Member entered an award for the respondent.

GROUNDS OF APPEAL

The appellant relies on four grounds of appeal. The first two grounds of appeal allege failure to provide “sufficient reasons” for aspects of the decision. The precise error alleged by the appellant can only be gleaned by reference to the submissions. They do not comply with Procedural Direction WC3. None the less, I attempt to distil the essence of each ground of appeal below.
The first ground of appeal (Ground A) alleges that the Member failed to respond to any of the appellant’s submissions regarding the reasonableness of the respondent’s actions with respect to masks, vaccination and the termination of his employment.
The second ground (Ground B) asserts that the Member failed to give sufficient reasons for her decision that the respondent’s mask and vaccination policies were reasonable.
The third ground (Ground C) alleges that the Member erred in failing to find a date of injury.
The fourth ground (Ground D) alleges that the Member erred in determining the issue of whether the respondent’s actions with respect to discipline and dismissal were the “whole or predominant” cause of injury in the absence of medical evidence.

THE EVIDENCE

Before considering each of the grounds of appeal, it is necessary to briefly review the evidence of the appellant. What follows is not intended to be a comprehensive account of his evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has determined this appeal.

Appellant

The appellant’s evidence at the arbitration hearing is contained in an unsigned statement dated 21 November 2022. Relevantly, the statement recounts that on his arrival at work on 4 September 2020, he was told that it was mandatory to wear a face mask. He states that he complied with this direction but experienced headaches and dizziness and “had to go home sick”. On the following day, he saw his general practitioner who prescribed nasal steroids for “infected sinuses”. The doctor also certified that due to this condition he should be exempted from wearing a mask. The respondent granted an exemption from its mask policy on the basis of this certificate.
The appellant returned to work in his usual occupation. He says he was asked by a manager to “provide more information” about his “medical condition” but he refused to do so and refused to consent to his employer having access to his medical records.[18] The appellant says he felt “extremely uncomfortable” and thought that he was being “targeted” at that time.
[18] ARD, p 13.
On 5 January 2021, the appellant was informed by a shift manager that the respondent “had changed the mask policy and would no longer recognise medical certificates”. He was told that he could either wear a mask “or leave the site”. The appellant chose to leave the site. He states that during the following weeks he was:
“so stressed and anxious not knowing when this was going to end and knowing that my leave was being eroded.”[19]
[19] ARD, p 14.
The appellant recounts that he returned to work during periods when the respondent permitted employees to work without a mask consonant with “the public health order”. However, on 10 February 2021, he received a letter from the respondent’s supply chain manager that, as he could not wear a mask, he was unable to meet the requirements of his role. In February 2021, the appellant “filed a complaint with Work safe”. He also contacted the Fair Work Ombudsman. On 23 February 2021, he contacted the Fair Work Commission and “lodged an application for stand down due to Coronavirus”. He received no satisfaction from these bodies. Following the Fair Work Commission’s summary dismissal of his complaint he:
“went home feeling sick and depressed.”[20]
[20] ARD, p 16.
The appellant was again stood down for a period in April 2021 “due to mask mandates being reinstated”. However, on 24 June 2021 when “public health measures were reinstated” for the Central Coast he was compelled to leave work. He states:
“I was extremely stressed as my leave was running out, I was asking to be relocated to a different area in the warehouse away from other staff.”
The appellant states he was offered relocation to a supermarket where mask wearing was not mandatory, however, he refused this offer as he felt that his “safety was being put at risk”. One of the respondent’s supermarket employees had been attacked by the public for not wearing a mask. He also says that his mental health “wasn’t up to facing the public in that environment”.[21]
[21] ARD, p 16.
By August 2021, the appellant’s leave was exhausted, and he was “forced to access government payments”. He says that he experienced weight gain and difficulty sleeping. He also “felt unmotivated”.
On 14 January 2022, he was telephoned by Andrew Hunt, a manager, who informed him that the requirement to wear a mask at work would end on 27 January 2022. Mr Hunt also stated the respondent “was in the process of implementing a vaccine mandate”. The appellant told Mr Hunt that:
“I would not be comfortable to adhere to the policy.”
He states that he was “feeling stressed and distraught”.[22]
[22] ARD, p 17.
On Friday 25 February 2022, during a further telephone call from Mr Hunt, the appellant was informed that the respondent’s COVID-19 vaccination policy required him to be double-vaccinated by 28 February 2022 or provide satisfactory proof of exemption. Mr Hunt also suggested that failure to comply with the policy may result in termination.
During a telephone conversation with another manager, Jon Parsons, on the same day, the appellant explained that as he had not consulted his work email address, he had not been informed about the implementation of the respondent’s vaccination policy. He also told Mr Parsons that:
“I would not be getting vaccinated”.
He was given an extension of four weeks to comply with the policy as “they had failed to notify me of the policy correct timeframe”. He states that by that time he was “really struggling” with his mental health.[23]
[23] ARD, p 18.
On 1 April 2022, during a telephone conversation, the appellant informed Mr Parsons that his position regarding vaccination had not changed. He was told that he would be advised of a meeting to “review my employment”. He was told that he could send relevant information concerning his employment by email on or before 5 April 2022. The appellant says that he declined to upload any information as he “felt it was hopeless”.[24]
[24] ARD, p 19.
On 7 April 2022, the appellant received an email from Mr Parsons stating that the respondent had not received any documentation and that a meeting was to take place on 8 April 2022 “to discuss the review of my employment”.
On 8 April 2022, the appellant “declined to join the meeting”. He was feeling “extremely anxious and distraught”. He phoned Mr Parsons and told him to “just get on with my termination as this is causing me distress.” Ultimately, the appellant received an email from the respondent informing him of the termination of his employment.
The appellant then addresses the reasonableness of the respondent’s directive that he be vaccinated. These are really submissions on that issue. He also states that as a result of the respondent’s “action in regard to terminating my employment for not being fully vaccinated” he suffered a number of psychological and physical symptoms. He recounts states that “[a]s a result of the termination of my employment” he suffers “from anxiety, adjustment disorder, generalised anxiety disorder and depression”.[25]
[25] ARD, p 23.
Finally, the appellant states that he has been:
“incapacitated for work as a result of the events arising from my employer’s decision to terminate my employment due to being unvaccinated”.[26]
[26] ARD, p 24.

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.

LEGISLATION

Section 352(5) of the 1998 Act is as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Section 294(2) of the 1998 Act is as follows:
“A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination”.
Rules 78(2) and (3) of the Personal Injury Commission Rules 2021 (the Rules) are as follows:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
Section 11A(1) of the 1987 Act is as follows:
“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

Logically, a consideration of the case should commence with Grounds C and D of the appeal. If the appellant is successful on those grounds, it would not be necessary to consider Grounds A and B. As I have reached the conclusion that the appellant has not succeeded on Grounds C and D, I propose to address the grounds of appeal in the sequence adopted by the parties. These grounds relate to different aspects of the obligation to give reasons.
The case law concerning the obligation is extensive. In Pollard v RRR Corporation Pty Ltd,[27] McColl JA (Ipp JA and Bryson AJA agreeing) summarised the principles to be drawn from the case law to that time from [56]:
“56.   The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268–269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’: Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713).
57.    The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA.
58.    The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.
59.    The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘‘enter into’ the issues canvassed and explain why one case is preferred over another’; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377–378) per Henry, Laws LJJ and Hidden J.”
[27] [2009] NSWCA 110.
It is my impression that it was accepted at the arbitration hearing that the respondent’s interaction with the appellant regarding its mask policy were actions with respect to discipline and its interaction with him regarding the vaccination policy were actions with respect to discipline and/or dismissal within s 11A(1). It is difficult to see how any other conclusion was available.
The first two grounds of appeal do not suggest that the Member misunderstood or misdirected herself as to the meaning of s 11A(1). Her statement of the legal principles derived from the case law at [18] of her reasons is not disputed. Both grounds challenge an evaluative decision of the Member as to the reasonableness of the respondent’s actions with respect to discipline and dismissal. In St George Leagues Club Ltd v Wretowska,[28] Deputy President Roche, in considering a challenge to an arbitrator’s decision as to reasonableness, applied the statement of the law by Spigelman CJ in Vines v Australian Securities and Investment Commission,[29] which, omitting citations, is as follows:
“Where, as here, the relevant statutory test turns on whether or not the Court is ‘satisfied’ of a matter involving a broad evaluative judgment, then the case law indicates that the degree of restraint which an appellate Court should manifest is of the same order as that applicable to a discretion, in the strict sense of that word. A statutory provision expressed in terms of whether a decision-maker is ‘satisfied’ of a particular matter is accurately characterised as conferring ‘a very wide discretion’.”
[28] [2013] NSWWCCPD 64.
[29] [2007] NSWCA 126, [8].
In Singer v Berghouse,[30] the plurality of the High Court expressed their agreement with the comments of Kirby P (as his Honour then was), in the Court of Appeal, in an unreported decision of Golosky v Golosky[31] concerning the requirement to be “satisfied” for the purposes of s 7 of the Family Provisions Act 1982 (NSW). His Honour stated:
“Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.”
Aspects of this reasoning are certainly applicable to appeals from findings as to the reasonableness or otherwise of an employer’s actions in disputes arising under s 11A(1) of the 1987 Act.
[30] [1994] HCA 40; 181 CLR 201, [28], per Mason CJ, Deane and McHugh JJ.
[31] Unreported, New South Wales Court of Appeal, 5 October 1993, 13–14.
It is also useful to bear in mind the comments of Hodgson JA in YG & GG v Minister for Community Services,[32] that:
“a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ.”
[32] [2002] NSWCA 247 (YG), [38].
Ultimately, the adequacy of the reasons of a member of the Commission must be determined by reference to the obligation in s 294(2) of the 1998 Act to provide a “brief statement setting out” the reasons for the determination and the requirement of the Rules to state material findings of fact; to refer to the evidence on which the findings were based; and to the reasoning process that led to the conclusions.[33] The reference to “brief reasons” and the objective of informal and expeditious dispute resolution in the legislation suggests that “adequate” reasons need not be lengthy or consider every aspect of the evidence. The fact that members undertake a large volume of work which frequently entails delivering reasons orally or in writing is also supportive of this conclusion.[34] But as the 1998 Act provides for an appeal, it is essential that the reasons are sufficient to permit a Presidential member to discern whether there is error of fact, law, or discretion. From that perspective, the appellate case law addressing the reasons required of a judge to which the parties referred may provide guidance. But it does not supplant s 294 or the Rules.

Ground A – Whether the Member sufficiently responded to the submissions of the appellant on reasonableness

[33] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [136]–[139].

[34] See the discussion of the obligation of magistrates in Lazicic v Rossi [2024] NSWSC 777, [45], per Kirk J.

At [16] of her reasons, the Member enumerated the appellant’s submissions as to why the respondent had not proven its actions were reasonable as follows:
“(a)    it did not consider that in May 2022 the government relaxed restrictions regarding vaccination;
(b)     his termination of employment denied [the appellant’s] fundamental right to work;
(c)     the termination of employment affected [the appellant’s] ability to provide for his family;
(d)     the termination of employment caused [the appellant] stress and depression;
(e)     the respondent could have suspended [the appellant] on full or reduced pay from 5 January 2021 until May 2022 instead of terminating his employment;
(f)      the respondent could have offered [the appellant] special leave for the 6-month period;
(g)     the [appellant] objected to the respondent’s offer to relocate him to a supermarket located outside the public health order restrictions, and
(h)     The respondent did not give any consideration to how it could accommodate [the appellant] throughout the pandemic during mask mandates.”
The appellant argues that it was incumbent upon the Member to “deal” with each of these submissions.[35] He submits that her failure to deal with any of the appellant’s submissions is an error of law. He refers to Dranichnikov v Minister for Immigration and Multicultural Affairs;[36] AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen,[37] and Taylor v J & D Stephens Pty Limited.[38]
[35] Appellant’s submissions, [7].
[36] [2003] HCA 26.
[37] [2016] NSWCA 229.
[38] [2018] NSWCA 267.
The respondent submits that many of the appellant’s arguments are not “substantial”. Alternatively, to the extent that any submission was not addressed in direct terms, “the essence of what was raised was dealt with consistently” with the case law.[39] It referred to the reasoning of Basten JA in Insurance Australia Ltd t/as NRMA Insurance v Milton[40] and of McCallum JA (as her Honour then was) in Wang v State of New South Wales.[41] The respondent also addresses each of the submissions recorded by the Member at [16] as follows:
(a)    there was no basis to assume that a relaxation in the NSW Government’s vaccination policy in May 2022 ought to have been known to the respondent during the period prior to his termination of employment on 8 April 2022;
(b)    there was no fundamental right to work. In any event, on the Member’s findings it was the appellant’s own decision to “forego any right to employment”;
(c)    the same reasoning applies to interference with the appellant’s “ability to provide for his family”;
(d)    this does not bear on the question of reasonableness. The respondent could not have foreseen the appellant’s psychological reaction. In any event, on the Member’s findings “it was all of the appellant’s own making”;
(e)    again, on the Member’s findings, it was the appellant’s own choice to be terminated;
(f)    the respondent argues that there is such ambiguity about this submission, given the uncertainty regarding the date of injury, that it is not a substantial argument;
(g)    this also is not a substantial argument. “It was not developed in any real detail and again lacks specificity”, and
(h)    the Member addressed the respondent’s actions “during the mask mandates” at multiple occasions in her reasons.
[39] Respondent’s submissions, [18].
[40] [2016] NSWCA 156, [9].
[41] [2019] NSWCA 263, [63]–[64].
The submissions to which it is said the Member failed to respond are largely contained in the appellant’s written statement.[42] They were not made by counsel. Where a worker is represented, reasons should respond to arguments put orally or in writing by his representatives, not to those contained in his statement. While the Member dutifully recorded the arguments of the appellant in her reasons, several are not substantial or have little relevance to the issue of reasonableness which she had to determine.
[42] ARD, p 19.
The appellant did not attempt to show how the respondent could have foreseen that the Government would “relax” vaccination restrictions in May 2022 at the time it developed or implemented its COVID-19 policy, or at the time of its dismissal of the appellant. Equally, it is doubtful the respondent could have foreseen that the appellant would develop an adjustment disorder following the termination of his employment. The reasonableness of an employer’s action must “be determined by the facts that were known to the employer at the time or could have been ascertained by reasonably diligent inquiries.”[43] The respondent’s submission on this point must be accepted.
[43] Northern NSW Local Health Network v Heggie [2013] NSWCA 255, [61], per Sackville JA.
The question of the fundamental right to earn a living was considered by the Court of Appeal in Kassam v Hazzard; Henry v Hazzard.[44] Bell P (as the Chief Justice then was) held that the common law did not recognise such a right. The appellant did not elaborate on this argument at the arbitration hearing. He did not address how the respondent’s actions in devising and implementing a mask and vaccination policy adversely affected his right to earn a living. He did not address the implications of Kassam. I accept that the termination of a worker’s employment may cause hardship. More so if the worker is elderly or infirm. This may be a factor which might be considered, at least subliminally, when addressing the issue of reasonableness. However, there is force in the respondent’s submission that these arguments are not substantial.
[44][2021] NSWCA 299 (Kassam), [100]–[104], per Bell P.
Contrary to the appellant’s submission on appeal, the Member specifically considered the arguments recorded at [55(g)–(h)] above. She found the respondent’s offer to relocate the appellant to a supermarket and the way in which it had dealt with the appellant over the period from the implementation of the mask policy was reasonable. She made specific findings that the respondent’s actions in permitting the appellant to take leave without pay and in extending the time to obtain vaccinations demonstrated reasonableness in the implementation of the policies.[45]
[45] Reasons, [21]–[25].
Importantly, the Member was cognisant of each of the appellant’s arguments, as she recorded them in her reasons. It is, therefore, not open to doubt that she considered them when determining whether the respondent’s actions with respect to discipline and dismissal were reasonable. I do not accept that Dranichnikov required the Member to analyse each of the enumerated points in depth. In Wang at [63] and [64] McCallum JA (Macfarlan and Meagher JJA agreeing) said of the decision in Dranichnikov:
“The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the arguments in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.
The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v. Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 271.”
When considering the content of a duty to give reasons in Public Service Association and Professional Officers’ Association Amalgamation Union of New South Wales v Secretary of the Treasury,[46] Basten JA stated:
“Generally, the concept of ‘reasons’ requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have been identified.)”
[46] [2014] NSWCA 112 (Public Service Association), [46].
The appellant’s criticism of the Member under this ground is an example of the “wrong approach” to Dranichnikov referred to by the Court of Appeal in Wang. The Member enumerated the points made by the appellant as to why the implementation of the policies was not reasonable. She was not obliged to grapple with each of these arguments irrespective of their relevance. None were central to the issue of reasonableness of the development or the implementation of the respondent’s policies. Those that were relevant might be weighed against contrary arguments in making findings and determining the case. But, as contemplated by the extract from Public Service Association at [63] above, even at that stage, it may be difficult for a decision maker to articulate the reasons for an evaluative decision on the issue of reasonableness.
In my opinion, the appellant has not established error under Ground A. It has not been established that there is an error of principle or a failure to take into account some material consideration in accordance with the principles enunciated in House v King.[47] There is no breach of r 78(2) and (3).
[47] [1936] HCA 40; 55 CLR 499 (House).

Ground B – Failure to give reasons

The thrust of the appellant’s argument under this ground is twofold. Inadequate reasons were given for the reasonableness of the policy and its implementation. The submissions in respect of the two arguments overlap. Thus, the appellant argues that the Member’s reasons do not disclose that she weighed his interest against that of the respondent in determining the issue of reasonableness.
The submission asserts that the Member did not deal with “the fairness appropriate in the circumstances”;[48] the manner in which the respondent’s policy was implemented;[49] or its effect upon the appellant, who allegedly was only given one week’s notice of the existence of the policy.
[48] Appellant’s submissions, [13].
[49] Appellant’s submissions, [14].
Secondly, the appellant attacks the finding that the policy itself was reasonable. He submits that the Member does not:
(a)    define the term “the context of the pandemic”;
(b)    state whether she accepts the view expressed in the vaccination policy;
(c)    refer to any public health order, or
(d)    consider “changes in approaches to public health over time”.[50]
[50] Appellant’s submissions, [18].
The submission concludes thus:
“Although the Member refers to the respondent’s policy being reasonable in taking into account the health and wellbeing of its workforce, she fails to provide any reasons for the objective consideration of the policy and/or weighing that policy against the other considerations set out in paragraph 18 of the decision, particularly in the context of the submission put on behalf of the appellant as set out in paragraph 16 of the decision.
It is submitted that, although the Member is only required to give ‘brief reasons’ for the decision ([1998] Act section 294(2)), the Member has failed to provide any explicable and/or cogent reasons for her decisions regarding the reasonableness of the respondent’s policy and actions leading to the termination of the appellant’s employment which caused his psychological injury.”[51]
[51] Appellant’s submissions, [19]–[20].
The respondent submits that the appellant’s submissions under this ground amount to a “merits review”.[52] In response to the submission that the Member did not deal with “the fairness appropriate in the circumstances”, the appellant argues that no relevant failure is identified.[53] It disputes that the Member failed to deal with the manner of implementation of the respondent’s policies as this was addressed and reasons given for her finding the process was reasonable at [23]. In respect of the argument that no explanation was given as to the meaning of the phrase “the context of the pandemic”, the respondent submits that it was referring to “the whole landscape of matters occurring during the pandemic”. The respondent concludes its submission on this ground thus:
“When the reasons are read and considered, the path of reasoning and basis for the conclusion reached is clear. The Member formed the conclusion that the respondent took numerous steps to accommodate the appellant in his refusal to wear a mask and get vaccinated. The decision to enforce a policy whereby employees were not permitted to return to work, absent special consideration, without vaccination was considered reasonable in the circumstances, as was the manner in which that was implemented. Ultimately, that finding was open to the Member and the reasoning as to how that [conclusion] was arrived at [is] plain.”
[52] Respondent’s submissions, [24].
[53] Respondent’s submissions, [27].
Two preliminary matters arise from the submissions under Ground B. First, there is an error in [18(c)] of the Member’s reasons. In recording the principles from Irwin v Director General of School Education,[54] the Member states that the test involves weighing the rights of “the employer against the objects of the employment”. This error has been repeated in both sets of submissions. It is, almost certainly, a clerical or typographical error. That impression is borne out by the context. The Member subsequently refers on several occasions to fairness, assessed objectively, being an important consideration in assessing reasonableness.
[54] Compensation Court of NSW, unreported, 18 June 1998 (Irwin).
Secondly, it is a central plank of the appellant’s submission that he was not advised of the respondent’s vaccination policy of 15 November 2021 until one week before the termination of his employment on 1 April 2022. That assertion is completely at odds with the appellant’s evidence. He was first advised of the vaccination policy on 14 January 2022. On 28 February 2022, he was given an extension of one month to comply with the policy. He was told on 1 April 2022 that a meeting would be convened on 8 April 2022 to review his employment.[55]
[55] See [34]–[36] above.
When the correct history is assumed, the appellant’s argument that the Member failed to deal with the way in which the policy was implemented falls away. As I have recorded above, the Member specifically considered the fact that the appellant was able to take leave for several months during the mask mandate. Then, an extension of time was granted to the appellant to comply with the vaccine policy or seek exemption. She concluded that the respondent had acted reasonably in each case.
The next argument raised by the appellant is that the Member did not deal with the fairness issue or weigh the rights of the employee against the objects of the employer. In considering the issue of reasonableness, the Commission’s practice has been to follow the instruction of Geraghty J in Irwin and of Truss J in Ivanisevic v Laudet Pty Limited.[56] Both cases were referred to with seeming approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan.[57] In Irwin, Geraghty J stated:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[56] Compensation Court of NSW, unreported, 24 November 1998.
[57] [2003] NSWCA 239.
A consideration of the legal principles which the Member set out at [18] suggests that she had these principles in mind when making her findings. In addition to referring to the principle of fairness contained in Irwin, the Member stated that:
“reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action”.
The Member also stated that in considering the reasonableness of disciplinary action, all relevant circumstances including the seriousness of the conduct and worker’s position in that business should be considered. Further, she recorded that compliance with various policies or procedures “cannot establish reasonableness in the absence of fairness.”[58] Given the repeated references to the requirement of fairness in her analysis of the case law, the appellant’s submission that the Member did not consider the overriding concept of fairness in making her findings is difficult to accept.
[58] Reasons, [18(h)].
The Member’s findings at [20] to [25] largely concern the reasonableness of the implementation of the mask and vaccine policies. For the reasons given above, the appellant has failed in its attack on these findings. In accordance with the case law, it was also necessary for the respondent to prove that the substance of the vaccination policy was reasonable. I have found the question of whether sufficient reasons were given to support a conclusion that the vaccine policy was reasonable difficult to resolve. To reiterate, the Member found at [26]:
“The respondent’s policy was reasonable in the context of the pandemic and taking into account the health and well-being of its workforce”.
It is tolerably clear that the Member accepted that the potential benefit to the respondent’s employees from the implementation of the COVID-19 policy outweighed the detriment to the appellant flowing from his refusal to wear a mask and receive vaccines. That may be correct. However, the finding does not refer to the evidence on which it was based or, in my opinion, reveal the underlying reasoning process.
In Zgouras v Australian Associated Motor Insurers Limited,[59] the President Judge Phillips stated at [71] that:
“In most respects, r 78 of the Rules in short form provides guidance to members’ decision making consistent with these authorities. Reasons can be brief, they must expose the member’s path of reasoning in reaching certain conclusions and should not be subject to overly close scrutiny in search of error.”
[59] [2022] NSWPICPD 17.
I accept that analysis. Nonetheless, the content of reasons must reflect the nature of the issue in dispute and the submissions made at the hearing. In stark contrast to the matters raised under Ground A, the question of the reasonableness of the respondent’s policy goes to the very heart of the dispute between the parties. It was non-compliance with the vaccination policy which gave rise to the appellant’s dismissal. Only a faint trace of the content of the policy can be discerned from the reasons. Although the written policy was in evidence, the Member does not directly address any part of it. Its content has to be assumed. Further, the reasons do not address the arguments raised by the appellant at the hearing as to why the policy was not reasonable. At the arbitration the appellant argued that there was no other documentary evidence addressing the reason why the policy was implemented;[60] that vaccination may cause adverse side effects;[61] and that the appellant had a long period of “unblemished” service.[62]
[60] T 6.
[61] T 7.
[62] T 19.
That is not to suggest that the Member was obliged to consider the matters set out at [68(a)–(b)] above, most of which are fanciful. But she was obliged to refer to the arguments in respect of the potential adverse side effects of the vaccine and the relevance, if any, of the longevity of the appellant’s employment which were undoubtedly raised at the hearing. That necessitated some discussion, however brief, of the contents of the policy. In my opinion, the Member’s finding on the threshold issue of the reasonableness of the contents of the policy is tantamount to a bald conclusion.
Given the nature of the dispute, appellate restraint is undoubtedly warranted. I have borne in mind the comments by Hodgson JA in YG that a decision as to reasonableness of an evaluative decision in a borderline case is often a matter of judgment on which minds might differ. However, I have reluctantly concluded that the Member’s finding that the respondent’s vaccine policy of 15 November 2021 was reasonable is in breach of the obligation in r 78 to refer to the evidence on which it is based and to provide reasons to support the finding. It may also constitute an error for the purpose of House.
The balance of the argument put by the appellant under this ground is not persuasive. The suggestion that it was necessary for the Member to define what she meant by the term “the context of the pandemic” or that she should have engaged with the evolution of public health orders, which were not in evidence, over time is fatuous. Nonetheless, the appellant has proven error under this ground. Given this finding, I will deal briefly with the remaining grounds of appeal.

Ground C – Failure to make a finding as to the date of injury

The appellant submits that as the Member did not make a precise finding of the date of injury, “it was not possible for her to be satisfied” which of the respondent’s actions caused the appellant’s psychological injury or to consider whether these actions were reasonable.[63] The respondent argues that the Member’s approach “covered all bas[e]s of the claim and reflected how the appellant presented his case.”[64]
[63] Appellant’s submissions, [27].
[64] Respondent’s submissions, [41].
As I have recorded above, the injury description in the ARD stated that the appellant’s injury was caused by events in his employment “from 05/01/2021 concerning a direction to wear a mask and to be vaccinated commencing on and after 04/09/2020.” The date of injury is said to be 4 January 2021, the date on which the appellant was first directed to wear a face mask. Curiously, it is said to be a ‘personal injury’ and not a disease.
During argument, the Member raised with counsel the date of incapacity and the date of injury. Mr Dodd suggested that the appellant suffered “from a disease process” pursuant to s 4(b) “and then we look at 15 and 16”. He stated that:
“I can understand the - the search for a date; however, in my submission, there’s a potential of a series of dates, that is, that he has a short period off and then he goes back to work, a short period off, he goes back to work. A series of dates but the only relevant date would really be the 9th of April, 2022.”[65]
[65] T 22.16–25.
It does not appear from the transcript that the appellant made an application to amend the ARD to reflect either a “series of dates” or 9 April 2022, the first date of incapacity claimed in the ARD. As the respondent submits, the Member sought to overcome the confusion caused by the pleadings by addressing the substance of the allegation in the ARD; that the appellant suffered injury by reason of events in his employment “from 05/01/2021 concerning a direction to wear mask and to be vaccinated.” Thus, the Member considered the application of the respondent’s “COVID-19 policy, over time and at termination of employment”.
That approach involved an undoubted acceptance that the implementation of both the mask and vaccination policies caused or contributed to the appellant’s psychological injury. It responds to the claim particularised in the ARD and to the arguments of the parties at the arbitration hearing. As the implementation of both policies constitute actions with respect to discipline or dismissal, the Member considered, and made findings, as to the interaction between the appellant and the respondent from the commencement of the mask policy on 4 September 2020 to the termination of employment. Neither the pleadings nor the appellant’s submissions at the hearing suggest that there was any other cause of injury. In these circumstances, the failure to determine a precise date of injury caused no injustice to the appellant.
The appellant also submits under this ground that the Member’s decision is “wholly deficient in reasoning such as to not allow the appellant to know why his case was lost.”[66] I doubt this assertion relates to the ‘date of injury’ issue. This ground of appeal fails.
[66] Appellant’s submissions, [33].

Ground D – Failure of the respondent to adduce medical evidence in accordance with Hamad

The appellant submits that in the absence of medical evidence, the Member was unable to determine whether his injury was caused by the respondent’s actions within s 11A(1). He referred to Hamad, in which Snell DP stated at [88] and [89]:
“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.
This is particularly so, given that the available medical evidence, from Dr Tadros and Dr Burke, was consistent with causes in addition to matters alleged to constitute ‘discipline’.”
At the arbitration hearing, the respondent argued that the appellant’s psychological injury was caused by the respondent’s vaccination policy. There was evidence to support this contention in the appellant’s statement and in the report of Dr Anand, who was the only specialist to provide a report in the case. When asked to address whether either discipline or dismissal was the predominant cause of the appellant’s psychological illness, Dr Anand responded thus:
“Mr Pemberton was terminated from his employment in late 2021 due to his failure to comply with COVID vaccination mandate as issued by NSW Government.”[67]
[67] ARD, p 6.
While the COVID-19 vaccination in this case did not result from a government mandate, it can be readily inferred that Dr Anand thought the appellant’s injury related to the termination of his employment as a consequence of the respondent’s COVID-19 policy. There are aspects of the appellant’s statement which also suggest this conclusion.
The appellant, however, argued that he was injured as a result of a “series” of traumatic incidents from the inception of the mask policy and continuing until the date of his termination. The Member clearly accepted this argument and determined the case on the basis put by the appellant. It was not suggested at the hearing, or on appeal, that there were incidents other than those with respect to “discipline” or “dismissal” that caused the appellant’s psychological injury. In those circumstances, the failure of the respondent to adduce medical evidence on causation is not material. Hamad is plainly distinguishable as there was no factual dispute that the appellant’s injury was caused by the respondent’s actions with respect to discipline or dismissal. This ground of appeal fails.

CONCLUSION

As the appellant has established error, the issue of whether the respondent’s actions with respect to discipline and dismissal were reasonable must be redetermined. I was initially inclined to refer the matter to a non-presidential member on the basis that only the issue of reasonableness required redetermination. However, given that the Member made no explicit finding of the date of injury and whether injury was wholly or predominantly caused by discipline or dismissal, and given the interrelationship of the issues arising under s11A(1), I have concluded that all the issues arising under s 11A(1) should be redetermined.

DECISION

The Certificate of Determination dated 9 May 2024 is revoked.
The matter is referred to a different non-presidential member for determination of whether the appellant’s entitlement to compensation for psychological injury is extinguished by the operation of section 11A(1).

Paul Sweeney

ACTING DEPUTY PRESIDENT

11 April 2025