Rees v Catholic Education Office Act

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rees v Catholic Education Office ACT [2025] NSWPIC 445
APPLICANT:	Evan Rees
RESPONDENT:	Catholic Education Office ACT
MEMBER:	Jane Peacock
DATE OF DECISION:	29 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; injury undisputed; section 11A defence; applicant submitted that the section 11A was not invoked because of an earlier injury and the principles in State Government insurance Commission v Oakley apply; Held – on the evidence that section 11A was invoked; respondent bears the onus of proving its section 11A defence; evidence weighed in the balance; not satisfied, on the balance of probabilities, that the respondent had not discharged its onus of proof that the action taken in relation to discipline was reasonable; applicant not precluded from the recovery of compensation for his psychological injury by reason of the provisions of section 11A; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent pay the applicant weekly compensation, on the basis of pre-injury average weekly earnings of $2,320 (subject to indexation), at the rate of $1,856 (subject to indexation) from 15 July 2022 to date and continuing, pursuant to s 37 of the Workers Compensation Act 1987. 2. The respondent pay the applicant’s s 60 expenses on production of accounts and/or receipts. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), Mr Evan Rees (the applicant), as amended, seeks weekly compensation and compensation for medical expenses as a result of psychological injury in the course of or arising out of his employment as a school teacher.
The respondent is Catholic Education Office ACT (the respondent). The respondent was self-insured at the relevant time for the purposes of workers compensation by Catholic Church Insurances Limited (the insurer).
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

There is no dispute that the applicant has a psychological injury suffered in the course of or arising out of his employment with the respondent as a teacher.
There is no dispute that the applicant had a prior psychological injury which resulted him going off work in 2018 for which he was paid weekly compensation and compensation for medical expenses.
He was able to return to pre-injury duties at the end of 2018 but remained on anti-depressant medication.
Otherwise matters of agreement were recorded at the conciliation/arbitration as follows:
(a)    pre-injury average weekly earnings (PIAWE) is agreed at $2,320;
(b)    it is agreed that the applicant has no current capacity for employment for all periods of the claim;
(c) psychological injury on 28 October 2021 is not in dispute but the respondent maintains a dispute under s 11A in relation to discipline;
(d) the applicant’s primary case is that he suffers from an accepted injury in 2018 and that s 11A does not arise in respect of the 28 October 2021 incident to preclude the applicant from the recovery of compensation because the applicant has an already accepted injury in 2018, and
(e)    in the event that his primary case is not accepted, the applicant concedes that his injury on 28 October 2021 wholly or predominantly resulted from the action taken or proposed to be taken by the respondent in respect of discipline but says that action was not reasonable.
The respondent relies on s 11A of the Workers Compensation Act 1987 (the 1987 Act) and says that the applicant is precluded from the recovery of compensation because his psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in respect of discipline.
If the respondent is successful in its s 11A defence, there will be an award in its favour.
In the event that the applicant is successful on the liability question, there is no dispute that the applicant is totally incapacitated for employment or has no current capacity for employment for all relevant periods of the claim and that an award of weekly compensation would be made in his favour.
The applicant seeks awards in the following terms:
(a) the respondent is to pay the applicant weekly compensation, on the basis of a PIAWE of $2,320 (subject to indexation), at the rate of $1,856 (subject to indexation) from 15 July 2022 to date and continuing, pursuant to s 37 of the 1987 Act, and
(b) the respondent is to pay the applicant compensation pursuant to
s 60 of the 1987 Act on a general order basis.
In the event that the applicant is successful on the liability question there is no dispute that a general order will be made in his favour for the payment of s 60 expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded to a conciliation/arbitration on 17 June 2025. The following directions were made about written submissions:
“1. In view of the complexity of the matter and the limits on time, the matter is to proceed by way of written submissions as follows (noting the timetable accommodates the other demands on counsel’s time and the applicant’s counsel absence from the jurisdiction):
(a)The applicant is to lodge and serve by 4pm 27 June 2025 written submissions.
(b)The respondent is to lodge and serve by 4pm 11 July 2025 written submissions.
(c)The applicant is to lodge and serve by 4pm 22 July 2025 written submissions in reply.
2. At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’.”

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Personal Injury Commission (Commission) by consent and considered in making this determination:
For the applicant:
(a)Application and attached documents, and
(b)the Application to Lodge Additional Documents (ALAD) and all documents attached filed by the applicant on 11 April 2025.
For the respondent:
(a)Reply and attached documents, and
(b)the ALAD and all documents attached filed by the respondent on
11 June 2025.

Oral evidence

The applicant did not seek leave to adduce oral evidence and counsel for the respondent did not seek leave to cross-examine the applicant. Neither counsel made any application in respect of cross-examination of the witnesses who provided statements in each parties’ case.

FINDINGS AND REASONS

The applicant was employed by the respondent as a school teacher since about 2002.
He had a prior work related phycological injury starting it seems in 2013 culminating in a compensation claim in July 2018 and time off work and treatment but with a return to full duties at the end of 2018.
He last worked on 28 October 2021.
He was terminated in April 2022. His termination came about because of his refusal to comply with the COVID-19 vaccine mandate. His termination was a result of his refusal to comply with the COVID-19 vaccine mandate does not form the subject of this dispute.
The subject of this dispute is concerned with a parental complaint about the applicant’s conduct during a year 9 class on where he expressed his views about the COVID-19 vaccine mandate to his students under the guise of a “buyer beware” component of the curriculum and the handling of the respondent’s response to that complaint by way of what is conceded by the applicant to be disciplinary action.
The applicant’s case on injury was “pleaded” in the application as follows:
“1. The applicant sustained a psychiatric injury as a result of the lack of support as a classroom teacher, such injury being a disease and accepted to have occurred on 01.01.2013. the applicant suffered an exacerbation of this disease process as a result of the incident referred to at 2 below, or in the alternative:
2. The applicant sustained a psychiatric injury as a result of the action of the employer in the handling of a complaint. Such action included the applicant’s exclusion from the classroom and placement, in seclusion of the staff room and the lack of provision of any particulars of the complaint for a delayed period.”
In respect of the allegation of injury described by the applicant in point 1 of paragraph 22 above the applicant relies in the pleadings on a deemed date of injury of 1 January 2013 with the date of compensation claim being 2 July 2018.
In respect of the alternative allegation of injury described by the applicant in point 2 of paragraph 22 above applicant relies in the pleadings on a deemed date of injury of 28 October 2021.
There is no dispute that the applicant had suffered a psychological injury (that it seems was, according to the applicant’s own pleadings, deemed to have occurred 2013) for which a compensation claim was made in July 2018. The applicant went off work for a period of time in 2018, received treatment and ultimately returned to work, firstly on a graduated return and then to full duties by the end of 2018. Liability was accepted for that injury in November 2018 and there is, and can be, no dispute about that injury.
There is also no dispute that the applicant suffered a psychological injury deemed to have occurred on 28 October 2021.
The dispute that arises is whether the applicant is precluded from the recovery of compensation by reason of the provisions of s 11A of the 1987 Act. The respondent says that the provisions of s 11A are invoked to preclude the applicant from the recovery of compensation and they seek an award for the respondent.
The applicant says, in the first instance, the provisions of s 11A are not invoked. The applicant had an accepted psychological injury prior to the events of 28 October 2021, that the respondent’s actions caused an aggravation of his accepted psychological injury and relying on the principles in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley), this means that s 11A does not apply. This is the applicant’s primary case.
In the event the applicant does not succeed on its primary case, there is no dispute that the applicant suffered a psychological injury on 28 October 2021 (as per the date pleaded) in the course of or arising out of his employment with the respondent as teacher. Furthermore, the applicant concedes that s 11A is brought into play because it is conceded that the applicant’s psychological injury is wholly or predominantly the result of the respondent’s action or proposed action taken in relation to discipline. However, the applicant says that the actions of the respondent were not reasonable and therefore the respondent’s defence under s 11A cannot succeed.
The respondent raises a defence under s 11A and says that psychological injury was wholly or predominantly caused by the reasonable actions of the employer taken or proposed to be taken in relation to discipline. There is no dispute before me that the psychological injury was wholly or predominantly caused by the actions of the employer taken or proposed to be taken in relation to discipline. The dispute under s 11A is confined to whether the action or proposed action was reasonable. The respondent bears the onus of proving its s 11A defence. If the respondent is successful in establishing a s 11A defence, the applicant would be precluded from the recovery of compensation for his psychological injury.
Section 11A of the 1987 Act provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(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 respondent relies on the head of discipline. There is no dispute that the applicant’s psychological injury was wholly or predominantly the result of the respondent’s actions taken or proposed to be taken in relation to discipline. The dispute is whether those actions were reasonable.
The respondent bears the onus of proof in relation to the s 11A defence.
This case must be decided on the balance of probabilities, on the evidence and in accordance with the law.
The respondent has conceded that the applicant suffered a psychological injury. The applicant concedes that the psychological injury was wholly or predominantly caused by the action of the respondent taken or proposed to be taken in relation to discipline. The action taken by the respondent was in response to a complaint from a parent that the applicant had made inappropriate comments to his year 9 class about the COVID-19 vaccine mandate.
However, the applicant’s primary case is that s 11A is not invoked in this case because the applicant suffered a pre-existing psychological injury at work for which liability was accepted and accordingly the principles outlined in Oakley apply, such that the applicant’s psychological difficulties following the meeting on 28 October 2021 are “referred back” to the original psychological injury.
In the event the applicant does not succeed on his primary case, the only question for determination is whether the action or proposed action of the employer was reasonable as all other relevant components of s 11A have been conceded.
The applicant submitted in respect of his primary case as follows: (emphasis in original and footnotes omitted)
“1.     Mr Rees submits that his psychological difficulties and entitlement to compensation are related to the accepted injury from 2018 which predated the events from 2021 and are causally related to these earlier events.
2.     In this regard, the Respondent accepted liability for Mr Rees’ psychological injury on 16 November 2018 (page 45 of the ARD). There is no challenge by the Respondent to this acceptance and the injury remains accepted.
3.     All Mr Rees has to establish is that the 2018 injury made a material contribution to his claimed entitlement to workers compensation. Moreover, Mr Rees submits, as the evidence demonstrates, that the difficulties caused by the events commencing in 28 October 2021 are worse because of the condition that he was in due to the 2018 injury. The evidence also demonstrates that the events from 28 October 2021 aggravated or exacerbated or made worse the injury from 2018.
4.     In this regard, in Hunt v Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 at [45] French CJ, Jayne and Kiefel JJ stated, pertaining to what is required for there to me a material contribution, that:
‘The law’s recognition that concurrent and successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is ‘caused or materially contributed to’ by a defendant's wrongful conduct. It is enough for liability that a wrongdoer's conduct be one cause. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.’(emphasis added and citations omitted)
5.     Moreover, in Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215 Wilson J stated that a relevant cause was sufficient “so long as it plays some part even if only a minor part in contributing to” the relevant consequence.
6.     The only basis upon which the Member can decide that the subject claim is not related to the accepted injury from 2018 is if a determination is made that the subject injury is a novus actus interveniens.
7.     The respondent’s own evidence demonstrates there is no relevant novus actus interveniens in this matter and the requirement for a material contribution, as noted in the cases referred to earlier, is satisfied.
8.     For there to be a novus actus interveniens, there effectively needs to be no role played by the injury accepted from 2018 to the applicant’s claimed loss.
9.     In State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Tort Reports 81-003 wherein Malcolm CJ made the following remarks that are directly pertinent to the circumstances of this matter:
‘where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury, the position is as follows:
i.Where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
ii.Where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
iii.Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.’
10.    The lay and medical evidence in this matter demonstrates either of the first two principles from Oakley apply to this matter.
11.    Mr Rees, noting the Respondent’s remarks at the Conciliation phase, submits that, other issues in the Applicant’s life which pre-dated the 28 October 2021 events but post-dated the injury being accepted in 2018, makes no different to these submissions. The events that commenced from 28 October 2021 only needs to have played a material contribution to the aggravation etc of the underlying, accepted, injury. As the report from Dr Anand demonstrates, incidents from 28 October 2021 were the main contributing factor to aggravating or exacerbating the 2018 injury.
12.    Mr Rees refers the Member to Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 in this regard and highlights that, in Aboushadi, the relevant plaintiff had sustained injury in 1985, further injury in 1988 and then a further injury in 1991.
13.    At [18] – [21] Mason P (with whom Meadher JA and Barr AJA agreed) stated:
‘The judge then applied this principle to the facts. He held that any damage caused by the incident at Tarago in 1988 occurred only because of the predisposition stemming from the effect of the 1985 accident; whereas the incident at Parkes in 1991 would have been likely to have caused damage had the respondent been in his normal condition at the time, although the damage sustained by him was greater because of his prior injured state.
On this basis, the appellant was held liable only for the extra damage stemming from the 1991 incident that was due to the respondent’s previously injured condition.
Applying these principles to the medical and other evidence, the judge concluded that slightly less than two-thirds of the damage occurring and manifesting itself after 1991 was attributable to the 1985 accident. He held that the 1985 accident had had a significant impact on the respondent and that, despite the Parkes incident of 1991, the respondent’s condition since that date had been largely as a result of the traumatic effects of the 1985 incident.
I detect no error in this approach to the difficult task of disentangling the traumatic impact of the two major accidents. It was clearly open to his Honour to find that the earlier accident had itself caused the psychiatric condition which would have and did in fact continue after 1991, notwithstanding that the 1991 accident both re-enlivened and exacerbated the earlier condition.’
14.    His Honour then went on to refer to cases such as Oakley and at [23] Faulkner v Keffalinos (1971) 45 ALJR 80, particularly Windeyer J ‘s remarks which Mr Rees’ relies upon as part of these proceedings and submits the subject circumstances are in the second class referred to by Windeyer J.
15.    The lay evidence which supports Mr Rees’ contentions are as follows.
16.    Mr Rees refers the Member to the Notification of Injury at page 17 of the ARD. The Member will see that Mr Rees’ difficulties pertaining to matters from 2013 that were exacerbated on or about 28 March 2018. The description of injury reads as follows:
‘Med cert states:
Work related stress, depression started in 2013, recently exacerbated by ongoing work stress’.
17.    The evidence before the Member demonstrates that the effects of these injuries did not abate. Mr Rees underwent treatment at the time he initially experienced difficulties, and he continued to undergo treatment, such as consuming medication, to the time of the incidents in October 2021.
18.    In his statement, dated 27 June 2023 (page 12 of the ARD), at paragraphs 56 – 58, Mr Rees indicated that he had suffered from pre-existing anxiety and depression which did not prevent him from performing his duties as a school teacher, but he was undergoing treatment by imbibing medication.
19.    In his subsequent statement dated 23 July 2024 (page 1 of the ARD), Mr Rees addressed the effects of his earlier injury at paragraphs 11 to 22 as follows:
a.He submitted a workers compensation claim with the Respondent regarding psychological injury in or around March or April 2018.
b.He was employed as a teacher at Trinity Catholic College, Goulburn at the time.
c.‘I had been struggling psychologically for many years due to ongoing work-related incidents, mainly around student disciplinary issues and lack of support from my employer to resolve those issues. These issues commenced in around 2013 due to lack of support in my role classroom (sic) teacher at Trinity Catholic College…I struggled on and off until I went off work in 2018…’
d.The relevant incidents included what is indicated at paragraph 14.
e.Mr Rees sought treatment with his GP about these work-related issues. He felt he was not supported in his role as a teacher and his issues were not resolving.
f.A claim was lodged and accepted.
g.‘I had approximately 6 months off work, and I was in receipt of workers compensation benefits.’
h.He came under care of his GP, Dr Quan, and Mr Guthrey, Psychologist.
i.‘Although I returned to my full teaching duties by the end of 2018, I continued to take Pristiq 100mg daily.’
j.Mr Rees refers the Member to paragraph 21 in full. He highlights that he does not believe his symptoms fully resolved and that the “medication enabled me to perform my teaching role to the best of my ability”. Examples of Mr Rees ongoing difficulties are provided at 22. The events from 2021 aggravated or exacerbated his underlying psychological difficulties causally related to the accepted injury from 2018.
20.    Mr Brynmore Rees, Mr Rees’ brother (at page 5 of the ARD), and Mr David Rees, Mr Rees’ father (at page 7 of the ARD), have indicated in their statements that the noticed a deterioration of Mr Rees’ mental health from 2018 and he continued to suffer from difficulties following this time. At paragraphs 7 – 9 of
Mr David Rees’ statement, consistent with Mr Rees’ primary case, the issues causally related to the accepted injury were aggravated as a result of the events from 2021.
21.    Mr Dane Sara, Mr Ree’s colleague (page 9 of the ARD), recalled observing
‘signs of being worn down and ‘broken’ from about 2019 (paragraph 5).’
22.    Mr Amanda Rees, Mr Rees’ wife (page 10 of the ARD), has indicated that she first noticed a change in Mr Rees’ psychological health about 6 years ago. Noting her statement is dated 4 April 2024, this places her observations at about 2018.
23.    Consistent with Mr Rees’ evidence, Mrs Rees stated that, whilst there was an improvement in Mr Rees’ condition following his undergoing of treatment, there was a decline in 2021.
24.    Turning to the clinical records, Mr Rees refers the Member to the records of Marima Medical Clinic, which demonstrate a continuum of psychological difficulty and the consumption of anti-depressant medication to address the psychological issues, labelled in the GP’s records as as Lovan or Pristiq or Desvenlaxafine, causally related to the injury accepted in 2018.
25.    The clinical entries also demonstrate that Mr Rees’ underlying psychological issues were exacerbated by COVID-19 generally. Importantly, the General Practitioners clearly recorded that Mr Rees’ underlying issues were aggravated and/or exacerbated and as noted in Aboushadi in particular, but also relying upon the totality of the cases referred to above, there mere fact that there may have been other issues prior to the events of 2021 does not assist the Respondent and does not detract from the fact that the effects of the 2018 injury were worsened and this made a material contribution to the loss presently claimed - which is all Mr Rees needed to establish.
26.    Indeed, when the clinical records and treating reports or referrals, language such as aggravation or exacerbation of the Applicant’s underlying issues is utilised. This clearly demonstrates the first two principles noted in Oakley are satisfied and that the claim for compensation is materially related to the accepted injury from 2018.
27.    Moreover, there is no need for the events from 28 October 2021 to be the main, whole, or predominant factor to the exacerbations or aggravations caused to the accepted 2018 – they only need to have played a materially contributing factor to same. As noted above and below, this is satisfied on the basis of the law and the evidence in this matter, including the evidence of Drs Das and Anand.
28.    Mr Rees specifically refers the Member to the entries dated:
k.11 May 2016 (page 77 of the ARD);
l.16 February 2017 (page 80 of the ARD);
m.28 March 2018 (page 81 of the ARD);
n.3 April 2018 (page 82 of the ARD);
o.13 December 2018 (page 91 of the ARD);
p.13 August 2019 (page 92 of the ARD);
q.15 February 2021 (page 94 of the ARD), in which it was noted that Mr Rees was ‘going well’ and had ‘no issues’ yet was prescribed Desvenlafaxine 100mg Extended release tablets one tab PO daily (^28^, R5) i.e. required medication to treat his psychological issues;
r.30 June 2021 (page 94 of the ARD) in which Dr Quan recorded:
asking for medical cert for exemption from wearing mask
…
history of significant depression and known to me.
he was stressed at having to attend the chemist without a mask and without medical support.
…
Dr Quan prescribed Desvenlafaxine on the exact same basis as in the entry dated 15 February 2021 i.e. 100mg Extended release tablets one tab PO daily (^28^, R5)
s.27 August 2021 (page 95 of the ARD) in which Dr Quan recorded
The Applicant again presenting with issues pertaining to Covid-19 generally.
Mr Rees was referred to undergo treatment.
He was also prescribe Pristiq (which is the brand name or another name for Desvenlaxafine) at the same dosage as above.
t.20 October 2021 (page 98 of the ARD) in which Dr Liu recorded:
attends in distress history of anxiety
feels it is exacerbated by stress surrounding work, covid, vaccine refusing to have the vaccine
…
MrRees was referred to undergo treatment.
Hewas also prescribe Pristiq (which is the brand name or another name for desvenlaxafine) at the same dosage as above.
u.21 October 2021:
acute stress reaction exacerbating underlying anxiety depression
Mr Rees was referred to undergo treatment
v.1 November 2021 and 24 November 2021 (page 99 of the ARD) – Dr Liu was consulted and history was taken subsequent to the work-related events of 28 October 2021.
w.25 January 2022 (page 100 of the ARD) in which Dr Mohammad recorded:
History: school teacher h/o anxiety and depression
hasbeen off work since Oct’21 – on sick leave
Reason….
…
Alreadyon Pristiq AND seeing a psychologist
…
Diagnosis:Aggravation of Anxiety and Depression Because of an Incident at School
x.22 February 2022
Aggravation of Anxiety and Depression Because of an Incident at School.
29.Accordingly, Mr Rees continued to be prescribed medication from the time of the accepted injury in 2018 injury, and this continued to the time of the events at work from
28 October 2021.The events from 28 October 2021made a material contribution to the aggravation etc of the underlying psychological condition.
30.Mr Rees highlights the following from Dr Liu’s undated report at page 93 of the Reply:
y.1 – ‘I believe he sustained an aggravation of an existing anxiety disorder.’
z.2 – diagnosis.
aa.5 – the events from October 2021 ‘exacerbated his anxiety’. (emphasis added)
bb.6 – ‘I believe Evan’s symptoms are as a result of aggravation of his pre-existing anxiety disorder by the complaint against him at work. However I believe the school’s requirements that their staff is adequately vaccinated against COVID is also contributing to his aggravation of anxiety.’
10 –‘Evan stated the date of exacerbation was 28/10/21. My opinion as to the cause of these symptoms are as a result of aggravation of his pre- existing anxiety disorder by the complaint against him at work. However I        believe the school’s requirements that their staff is adequately vaccinated against COVID is also contributing to his aggravation of anxiety.’
cc.11 – ‘…The aggravation has not ceased and it is difficult to accurately comment on the timeframe at this time, likely between 1 – 24 months.’
31.    Mr Rees also refers the Member to the Certificates of Capacity at:
dd.Page 181 of the ARD, wherein the diagnosis is noted as being ‘Aggravation of Anxiety and Depression Because of an Incident at School’; and
ee.Page 187 of the ARD, in which the diagnosis is recorded as being ‘Recurrence of major depression.’
32.    Turning to the medico-legal evidence, the Respondent has relied upon the report of Dr Das, dated 24 May 2022 (page 72 of the Reply.
33.    Underneath the sub-heading ‘PAST HISTORY ’, Dr Das noted the accepted claim from 2018, the fact that Mr Rees’ underwent treatment for same, took time off work for same, and ultimately returned to work. Dr Das then stated:
‘His symptoms then included lack of motivation, ongoing anxiety, fatigue, emotional exhaustion. He said this was triggered by ongoing lack of support. He was however able to return to full duties as a teacher. He saw a psychologist and he was on antidepressant medication Lovan that he took continuously since. This does was increased recently, and he takes one tablet every morning.’
34.    Under ‘OPINION’ Dr Das opined Mr Rees was currently suffering from a Major Depressive Disorder.
35.    He also opined that Mr Rees had a past history of a similar condition where he was treated with medication and a psychologist and he also noted the claim from 2018. Dr Das observed Mr Rees worked on a full time basis until
28 October 2021, and during this time he was ‘on low does maintenance antidepressant therapy.’
36.    Dr Das indicated Mr Rees’ symptoms have deteriorated and treatment had not been as effective.
37.    Dr Das’ diagnosis, in response to question 1 was ‘Recurrence of Major Depression.’
38.    In response to question 11, Dr Das indicated:
‘The worker’s condition is recurrence, and it has not ceased or resolved yet…’
39.    Accordingly, Dr Das’ opinion, it is submitted, is not that there is a novus actus interveniens. Rather, his opinion is that there was a recurrence injury i.e. of the initial 2018 injury, as a result of the events from 28 October 2021. Mr Rees did not sustain a new, unrelated, injury, meaning, on any view of it the 2018 injury made a material contribution to the claim for weekly compensation and treatment as presently claimed.
40.    The Respondent also relies upon the report of Dr Anand, dated 9 May 2025 (page 3 of the Respondent’s AALD dated 11 June 2026).
41.    Mr Rees refers the Member to Dr Anand’s comments under the sub-heading ‘PAST MEDICAL HISTORY’ including at 16.
42.    Dr Anand indicated, in response to question 8, stated that:
‘…The workplace incident in 2021 was a significant factor in the aggravation of his pre-existing condition. My opinion is based on noting his clinical presentation and the documented evidence…’ (emphasis added)
43.   In response to question 9 Dr Anand similarly stated:
‘On the balance of probabilities, workplace factors were the main
contributing factor to the aggravation of Mr Rees’ pre-existing psychological disorder and stem from the incident in October 2021 when he was stood down from his teaching position...’(emphasis added)
44.   At question 20, Dr Anand was asked to comment upon Dr Das’s opinion. Dr Anand indicated that he agreed with same. Conversely, Dr Anand, when asked to comment on the report of Dr George at question 21, stated that he disagreed with Dr George’s opinions that the injury related to the events from 2021 was not an exacerbation of the earlier condition. Dr Anand stated:
‘Dr George concluded that the suspension and investigation were the main causes of his psychological symptoms, not an exacerbation of a previous condition. I disagree with regards to this being a new psychological condition as advised by Dr George. I am of the opinion that this is an aggravation of a pre-existing condition.’ (emphasis added)
45.   Dr Anand’s opinion was that this aggravation or exacerbation injury was causative of the loss claimed, including rendering Mr Rees as having no capacity to work. His opinion goes beyond a mere satisfaction of the material contribution test. Dr Anand’s opinion is far stronger and is that the events from 28 October 2021 were the main contributing factor to aggravation Mr Rees’ 2018 injury.
46.   The evidence referred to above, read as a whole, of even taken individually, demonstrates the accepted injury from 2018 has made a material contribution to the claimed loss. As Dr Anand has clearly stated, Mr Rees did not sustain a new injury. The injury which Mr Rees sustained was related to the injury which the Respondent has accepted, from 2018, and the events from 2021 merely aggravated or exacerbated or caused a recurrence of same.
47.   This is sufficient to satisfy either of the first two principles noted in Oakley because, unless and until the applicant’s underlying condition was aggravated or exacerbated, he did not sustain the loss which the subject of this claim. In other words, he sustained the subject damage as a result of the exacerbations or aggravations of the 2018 injury.
48.   This is the opinion of Drs Das and Anand i.e. the aggravation or exacerbation was causative of the total incapacity for employment.
49.   Dr George, qualified by Mr Rees, has provided two reports in this matter.
50.   In the first report, dated 30 June 2023 (at page 53 of the ARD), underneath the sub-heading “Previous Claims”, Dr George noted Mr Rees’ claim from 2018 and his prior injury. He also noted the fact that Mr Rees was imbibing medication from then onwards and, consistent with the clinical records, he remained on anti- depressants to the date of the injury by which Dr George is referring to the time Mr Rees went off from work after 28 October 2021.
Dr George indicated that Mr Rees remained on this medication in order to prevent him from relapsing.
51.   The history taken by Dr George in the second last paragraph at page 5 of the report is not completely accurate. Whilst Mr Rees’s condition did worsen and his treatment modes did change subsequent to the events in October 2021, Mr Rees was prescribed Desvenlaxafine 100mg daily prior to October 2021 (see for example the GP’s entries from February 2021 noted above).
52.   Dr George’s ultimate opinion was that Mr Rees had sustained an injury that was not related to the accepted injury from 2018, and he noted the fact that Mr Rees had been on prophylactic medication for a number of years.
53.   Mr Rees submits that Dr George’s opinion, in this report, does not detract from the medical evidence referred to above. Mr Rees was prescribed medication for a number of years in order to prevent relapse, and he relapsed subsequent to what happened on 28 October 2021. Unfortunately, Dr George’s opinion is also affected by the fact that he mistook the history as to prescription of relevant medication and considered Desvenlaxafine was prescribed after 28 October 2021 when it had been prescribed prior.
54.   Mr Rees therefore submits the opinions of hi GP, and Drs Das and Anand, ought to be accepted in preference of Dr George’s, in this regard.
55.   In his second report, dated 27 November 2024 (page 46 of the ARD),
Dr George has provided an opinion which is supportive of Mr Rees’ claim, and Dr George’s response to question 2, supports the second limb from Oakley being satisfied i.e. the extent of the damage sustained by Mr Rees as a result of what transpired from 28 October 2021 is greater because it aggravated the ‘prior vulnerability and underlying injury.’
56. Therefore, there is no reason to consider section 11A in this matter because it does not apply. The claim for compensation pertains to the accepted injury from 2018.”

The respondent submitted that the applicant’s primary case should not be accepted because it is not true that only a novus actus interveniens would snap the causal link but that the applicant bears the onus of proof and has to prove that the injury is materially connected.
The respondent says this is not supported by the views expressed by the independent medical expert (IME) qualified on behalf of the applicant Dr George who the respondent says was at pains to point out that the circumstances surrounding the events of 28 October 2021 were uniquely causative of injury.
The respondent submitted that the opinions of Dr Anand and Dr Das also do not give comfort to the applicant’s case.
The respondent submitted that just because a psychological injury can be considered an aggravation of an earlier psychological injury, that is not enough and causation still has to be determined in the commonsense way prescribed by Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang and Bates).
The respondent submitted: (emphasis in original and footnotes omitted)
“The Applicant makes the point that the Respondent must establish a novus actus to avoid liability in relation to the 2018 injury. Respectfully, the Applicant must first establish sufficient connection, in the sense of a material contribution, between the 2018 injury and the subsequent 28 October 2021 injury. The subsequent proposition is that the link may be snapped either by a novus actus or by want of sufficient connection.
When one then reviews the evidence, it is quite clear that the Applicant has failed to meet that threshold. The mere fact that that a previous condition had been sustained in 2018, of itself, or with the presence of the term aggravation does not automatically translate to a satisfaction of a sufficient connection or, indeed, the satisfaction of the greater damage requirement in category two of Oakley.
There is no treating report from the Applicant’s treating General Practitioner, despite having attended that practice since 2008, and there is no report from Mr Gurthrey, Psychologist, despite haven’t treated the Applicant previously in 2018 and again subsequent to 2021. The Applicant instead relies upon the opinions of Dr Graham George, Psychiatrist, in support of his claim.
To that end, Dr George noted in his report of 30 June 2023 that the Applicant had previously sustained a work related injury in 2018 that at that stage required treatment for both anxiety and depression. He confirmed that whilst the applicant had remained taking an antidepressant after that time, the use of the antidepressant was prophylactic as opposed to being used for the purposes of treating that condition. That statement is undeniably true having regard to the clinical material in the general practitioner notes (as outlined above) and the lack of any active therapeutic treatment from a psychologist/psychiatrist or complaint from the Applicant. Indeed, the applicant denied symptomatology on a number of occasions in that period.
The applicant directly indicated to Dr George that the cause of his injury was the meeting that occurred on 28 October 2021, as opposed to an aggravation of a previously active medical condition or indeed that his previous condition left him unable to cope with events as they occurred. Dr George took no history of active ongoing complaints with respect to the previous injury, noting:
‘He believed that the antidepressant, on which he had been placed previously was prescribed by Dr Teddy Quan. He indicated that, although he had been complainant with medication it did not appear to make a great deal of difference to him. The Applicant went on to note that his sleep had been quite normal prior to the meeting of 28 October 2021 and went onto to describe an emergence of symptoms in the post 28 October period. It is noteworthy that the Applicant describes his use of medication and lack of symptoms in that way and, furthermore, that he failed to disclose any history of his issues associated with the Public Health Order or, indeed, his referral to a psychologist prior to the meeting of 28 October 2021 The manner in which history was provided was in line with his first statement of 27 June 2023 he made no mention of his 2018 injury being relevant.’
Ultimately, Dr George considered that the Applicant had sustained an injury in the form of major depressive disorder with anxiety as a result of what had occurred on 28 October 2021. For the sake of abundant clarity he went on:

‘Mr Rees indicated that he did not have symptoms of a depressive disorder prior to 28 October 2021. He had remained on prophylactic antidepressant medication for about nine years or so since his first Workcover claim. This, obviously had been a preventative measure, which had been undertaken by a treating doctor.’
That history is entirely consistent with his original statement of 27 June 2023 but sits uncomfortably juxtaposed with his statement 13 months later on 23 July 2024 in which he described a variety of symptoms that had not resolved and remained active up until the meeting on 28 October 2021. Indeed, by the time the Applicant came to complete his second statement in anticipation of these proceedings he indicated that he not only had not resolved but feel pressured to remain, entirely at odds with his report to
Dr Liu of going well with no issues on 15 February 2021.
Dr George was asked to provide a second report in support of the claim, seemingly with an eye to Oakley case based on the questions posed, which was prepared on
27 November 2024. The question was posed ‘do you consider that he would not have sustained this injury had he not been in the psychological condition he was in as a result of the prior injury of 2018?’, a question itself that presupposes the existence of a current psychological complaint as at the time of the 28 October meeting. In any event, the doctor provided a lengthy answer in which he ultimately concluded:
‘My initial View and my current view are about what transpired on or around 28 October 2021 was the principal cause of his psychological injury and was not, necessarily, a result of his prior mental state. As such, I would not define this as a relapse. The set of circumstances leading to his onset of symptoms were unique and Mr Rees appears to perceive himself as isolated, unsupported and threatened by the consequences of his choices.’
In terms of the second question posed, whether the effects of the injury were greater due to the presence of the prior injury, the doctors answer was uncertain at best in suggesting that it was ‘possible’ that his symptoms in 2021 have been greater because of the aggravation of the vulnerability. Respectfully, the onus lays upon the Applicant and the possibility that may have been the case on a background of the outlined evidence above and the doctor’s own view that it was definitely not a relapse and was independent of the prior condition. The applicant does not, therefore, get past ‘go’ in terms of establishing the bare requirements to engage the causation principals relied.
In terms of the Respondent’s medico-legal evidence, no support or comfort is found for the Applicant in seeking to overcome this issue. The report of Dr Anand dated 9 May 2025 makes it plain that, despite the inflated history provided by the applicant with respect to the prior condition, the condition was due to his opposition to Covid mandates and the meeting on 28 October 2021. That is the doctor found a Major Depressive Disorder independently caused by those events, without reference to the earlier injury.
Similarly, the report of Dr Hillol Das dated 24 May 2022 no history of ongoing symptomatology was recorded as being present in the period pre-dating the 28 October 2021 meeting The doctor confirmed a diagnosis of Major Depressive disorder and, like Dr George, noted the ongoing low dose maintenance medication but made no further finding to support the proposition that it was therapeutic in use. The Applicant’s attempts then to hold on to the term recurrence in the ultimate diagnosis of Major Depression does not, as he seems to believe, overcome the issue that without more such a bare statement of the re-emergence of a major depressive disorder meet the evidentiary requirements to make good the causation proposition.

The Novus Actus

Turning then to the second point in respect of the Oakley argument, the Respondent’s position is twofold.
‘Firstly, the evidence as outlined indicates that there is quite clearly a novus in the circumstances of this claim insofar as the meeting of 28 October 2021 was of such effect so as to break the chain of causation to the earlier injury of 2018. That is so on the basis of the medico-legal opinion, the contemporaneous reporting and the Applicant’s own admission in his earlier statement of the true Gensis of his condition. The Applicant’s own medico-legal evidence makes that plain.
Secondly, the evidence also makes it plain that the Applicant, despite his failure at all times in his evidence and histories to the medico-legal doctors, was in fact making psychological complaints in relation to the Public Health Order and the Covid Pandemic. Rather than assisting the Applicant, as appears to be submitted, the fact that the Applicant had sought disclosed psychological symptoms as a result of those matters and sought a referral to a psychologist speaks to a novus actus as between the 2019 and 28 October 2021 events. It is, at that point, for the Applicant to explain in the relevance of those matters on a causation basis to enable the commission to undertake any Oakley tasks it is sought to undertake. The Applicant has failed to engage in that point in any way, largely due to non-disclosure and understatement’.”

In reply the applicant submitted that he must succeed on his primary argument because the expert evidence supports his case.
The applicant submitted in reply as follows: (emphasis in original and footnotes omitted)
“The main hurdle which the Respondent faces pertains to the fact that it is made
contrary to expert evidence. In absence of expert evidence, Mr Rees’ primary case cannot be rejected and a person’s lay interpretation of the evidence cannot be relied upon. This is because the existence of the injury, which Mr Rees relies upon, is not a matter that can be determined by a person applying his or her own lay inference or interpretation to the evidence (Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419).
The corollary to the main hurdle is that the Respondent’s own experts have supported Mr Rees’ primary case and a break in the causal chain is not supported.
Therefore, there is no evidentiary basis to find contrary to what Mr Rees seeks and the fact that there may have been other issues in Mr Rees’ life that have caused him some issues is of no moment.
The case law relied upon by Mr Rees in his initial submissions demonstrates why, when taken with the expert and treating medical evidence that is before the Member, this is so.
The second issue which the Respondent faces is that it has sought to discount the lay evidence relied upon by Mr Rees, but the evidence as to the onset of Mr Rees’ symptoms and his ongoing issues as recorded in the lay evidence are consistent with the medical evidence lodged by the parties.”
When I weigh all of the evidence in the balance I am not satisfied on the balance of probabilities that the psychological injury in 2021 is sufficiently materially connected to the earlier injury (pleaded as an injury deemed to have occurred in 2013 with a claim lodged on
2 July 2018). This is because the evidence shows the applicant returned to full duties, he gave evidence in his statement dated 27 June 2023 that he was not affected in anyway in performing his full duties as a teacher prior to the events of 28 October 2021. This accords with the weight of the medical opinion including the expert opinion before me, particularly that of Dr George, the independent medical expert qualified to provide an opinion on behalf of the applicant, that the events of 28 October 2021 were uniquely causative of injury. Dr George clearly expresses this view as follows:
“My initial View and my current view are about what transpired on or around 28 October 2021 was the principal cause of his psychological injury and was not, necessarily, a result of his prior mental state. As such, I would not define this as a relapse. The set of circumstances leading to his onset of symptoms were unique and Mr Rees appears to perceive himself as isolated, unsupported and threatened by the consequences of his choices.”
The applicant’s primary argument fails.
The question for determination then becomes whether the respondent’s actions taken in relation to the discipline were reasonable.
The actions taken or proposed to be taken by the respondent in relation to the discipline of the applicant were in response to a complaint from a parent of a year 9 student that the applicant had made inappropriate comments to the year 9 class about the COVID-19 vaccine mandate.
The question of whether the actions taken by the respondent were reasonable is a matter of fact to be determined by me on the evidence.
The question of whether the employer’s actions were reasonable is a factual determination. I have to weigh all of the evidence in the balance and determine, on the balance of the probabilities, whether the actions of the employer were reasonable in the circumstances of this case.
The issue of reasonableness in the context of s 11A has been considered many times. The issue of reasonableness in the specific context of discipline has also been considered many times.
A worker is entitled to procedural fairness in the disciplinary process: see Rail Corporation NSW v Arvanopules [2019] NSWWCCPD 65.
The issue of reasonable action with respect to discipline was considered in NSW Local Health Network v Heggie [2013] NSWCA 255, where, Sackville AJA, said at [59]-[61]:
“The following propositions are consistent with the statutory language and the authorities that have construed s.11A(1) of the WC Act:
(a)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(b)Nonetheless, for s.11(A)(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(c)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(d)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that cause psychological injury was reasonable.
Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(e)Whether psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(f)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(g)If an Arbitrator does not apply the wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.
‘Section 11A(1) of the WC Act gives rise to a further question of construction which was not addressed in the parties’ written submissions, but was raised in argument before this court. The question is whether the reasonableness of disciplinary action is to be assessed exclusively by reference to circumstances that were known or should have been known to the employer at the time the action was taken. Mr Morris SC, who appeared with Mr Perry for the Health Network, contended that facts that come to light after the employer has initiated the relevant disciplinary action can and perhaps must be taken into account on the issue of reasonableness. Mr Hale SC, who appeared with Mr Hanrahan for Mr Heggie, submitted that the reasonableness is ordinarily to be determined by reference to circumstances known at the time had reasonable inquiries been undertaken. He appeared to contemplate, however, that this would not necessarily be a universal rule, although he did not specify when it might be departed from.
In my opinion, the better view is that the reasonableness of an employer’s action for the purposes of s.11A(1) of the WC Act is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonable diligent enquiries. The statutory language directs attention to whether the psychological injury was caused by reasonable disciplinary action taken or proposed to be taken by the employer. Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable enquiries or exercise reasonable care. The language does not readily lend itself to interpretation which would allow disciplinary action (or action of any other kind identified in s.11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
Foster AJA cited the following passages with approval in Commissioner of Police v Minahan [2003] NSWCA 239 at [27]-[28]:
“Geraghty CCJ said in Irwin v Director-General of School Education (unreported 18 June 1998) that:
‘The question of reasonableness is one of fact, weighing all relevant factors. The test is less demanding than the test of necessity, but more demanding than the 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 a question of fairness.’
Truss J said in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) that:
‘In my view when considering the concept of reasonable action the court is required to have regard not only to the end result to the manner in which it was effected.’”
Santow JA noted in Minahan as follows at [4]:
“The modest preliminary investigative step of interviewing the complainant, or at the least making more effective effort to do so, fell far short of a full investigation, (which latter course the employer might reasonably conclude was unwarranted in the circumstances). Despite the argument before this court to the contrary, there could in reality be no suggestion of any conflict of interest for this employer the Police Commissioner in conducting that more limited investigation as against exercising due concern for efficient use of resources pursuant to Pt 8A of the Police Services Act 1990 (NSW). It was not reasonable for the Police employer to fail to heed the understandable concerns of a valued officer known to be deeply distressed by these allegations, when it knew them to be unfounded, and instead referring them for intelligence purposes. The respondent naturally perceived that step as leaving a blot on his hitherto unblemished record, adding to his distress and continued anxiety. That is not a criticism of the referral per se. It is simply recognition that vis a vis the employee the steps taken were, in the absence of any investigation, clearly unreasonable. Moreover had the preliminary investigation taken place and confirmed the baselessness of the allegations then no such referral would have been necessary or, if necessary, would have included the favourable result of the preliminary investigation as well.”

In considering whether an employer had discharged its onus of establishing a s 11A defence, Roche DP in State of New South Wales v Stokes [2014] NSWCCPD 78; said at [89]:
“I agree with Mr Daley’s submission that the email seems to suggest that the error that occurred in the testing was readily identified, once the review was done, and, had the appellant done that simple review prior to confronting Ms Stokes, nothing would have been said to her and she would not have been put off work. In other words, if the appellant had exercise reasonable care and diligence, by having the results checked and confirmed before confronting mistakes, no problem would have arisen.”
A failure by an employer to follow its own policies and procedures can render the action not reasonable: see Balranald Shire Council v Walsh [2013] NSWWCCPD 47.
Counsel for the respondent pointed me to the observation of President Phillips in the decision of Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49 (Van Vliet):
“The concept of reasonableness in s 11A(1) does not, with respect, require a counsel of perfection. It requires, consistent with the authorities (Heggie, Irwin), that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.”
The issue in this case is whether the action taken or proposed to be taken by the respondent was reasonable. In this case, the issue of “reasonableness” requires careful consideration of the evidence of the alleged conduct of the applicant and the action taken by the employer in response.
The actions taken or proposed to be taken by the respondent in respect of discipline arose because the applicant was the subject of a complaint from a parent of a year 9 student that the applicant had made inappropriate comments about the proposed COVID-19 vaccine mandate to a class of year 9 students.
Upon receipt of the complaint, the respondent commenced an investigation. The commencement of an investigation in these circumstances is not unreasonable in it itself because the respondent as an educational institution for minors have obligations to the students in their care. They also have an obligation to the applicant as their employee. It can well be accepted that it is a delicate balance that the employer must strike when faced with complaints about teacher behaviour which may place students at risk of harm to their mental well-being. The question of whether the action taken by an employer is reasonable is a matter of fact that must be determined on the evidence before me. It is the respondent who bears the onus of proof.
Upon receipt of the complaint, the respondent immediately removed the applicant from face-to-face teaching. He was not suspended. In these circumstances he would continue to be paid his full salary. He was asked to spend time in the staff room as opposed to face-to-face teaching and he says this was without any clear duties being assigned to him.
After removing the applicant down from face-to-face teaching but not suspending him, the respondent commenced an investigation.
The respondent as an employer has an obligation to the applicant as their employee.
The respondent also has an obligation to act in the best interests of their students. This can readily be accepted to be a protective role as well as an educative one.
The commencement of an investigation in these circumstances is not unreasonable in it itself because the respondent has obligations to the students and to respond to parental complaints about teacher behaviour.
They also have an obligation to the applicant as their employee to act fairly and with due process.
It can well be accepted that it is a delicate balance that the employer must strike when faced with parental complaints about a teacher’s behaviour which may be construed as harmful to students. Harm is not limited to physical or sexual harm (of which there is absolutely no suggestion of either here) but also extends to potential harm to mental health.
It can also be readily accepted that the actions of the employer must be judged in the context in which they have arisen. In this case, in the context of a global pandemic.
The question of whether the action taken by an employer is reasonable is a matter of fact that must be determined on the evidence before me. It is the respondent who bears the onus of proof.
Counsel for the respondent submitted that I would find the action taken by the respondent was reasonable. In addressing whether the action taken by the respondent was reasonable, counsel for the respondent submitted: (emphasis in original and footnotes omitted)
“Respectfully, a ‘counsel of perfection’ is precisely what the Applicant seeks to thrust upon the Respondent here with respect to the events of 28 October 2021.
It is apparent, as has been outlined above, that the Applicant does not deny the substance of the complaints made in the letters of 2 November 2021 and 17 November 2021. That is not surprising in circumstances where conduct complained of is consistent with the commentary the Applicant was providing to his treating doctors, in written communication with the Respondent and in the teachers common room. The Applicant well knew what he had been espousing to students in his own classroom under the guise of a ‘buyer beware’ unit.
That conduct must be balanced against the conduct of the school. At the time of the conduct the Respondent was having to deal with the repercussions of a global pandemic, government issued health orders and ensuring its staff were in compliance with those orders (aside from ensuring students continued to receive the highest quality of education possible in those extraordinary circumstances).
The respondent sits in a unique position vis-à-vis its students and owes additional common law obligations for their protection, placing it in a position akin to locus parentis, and those obligations must be borne in mind when judging its conduct. The interests of the children were paramount and the question must be asked what a reasonable person would expect it to do.
The respondent was faced with the options of allowing the applicant to continue teaching, while it undertook its investigations, or removing him from contact with children, although allowing him to continue to work in an office based setting. The conduct complained of was significant, and especially so given the young age of the students, Year 9, but also the global health circumstances as they were at the time.
To that end, the respondent was advised of a complaint on the evening of 27 October 2021 at approximately 9:30pm by a concerned parent with respect to what were extreme views being propounded to her child (and others). The parent, understandably, demanded an investigation and sought her child’s separation from the applicant.
The Respondent immediately took steps to determine the best course forward and reached the conclusion that the Applicant should be removed from face-to-face teaching, although not stood down, to enable the complaint to be properly understood and investigated. With limited time in which to act given the time of the complaint, the Respondent was advised at approximately 8:30am on 28 October 2021 that a complaint had been received from a parent, that confirmation of the particulars would be obtained and communicated in a letter to the Respondent and that in the intervening period he was not stood down but could not undertake face-to-face teaching. Consistent with usual process the Applicant was asked to keep the matter confidential (although it is difficult to accept the Applicant’s assertion that he believed he could speak to no one)
The applicant left work at the end of that day and subsequently placed himself on personal leave the following day. Within 2 business days thereafter the Applicant was provided with a letter outlining the general particulars of the complaint:
‘…between 25 and 28 October 2021. The complaint relates to content you are alleged to have discussed with students you were teaching relating to COVID-19 and recommendations and requirements to be vaccinated.’
Moreover, the Applicant was advised of the investigation process, his ability to engage with it, that full and further particulars would be provided when available and was directed to the intranet for copies of various material as well as being offered support if required. In circumstances where the Applicant does not deny what occurred it could hardly be the case that he was unaware of what the conduct related to as asserted.
The complaint made by the applicant that no support person was offered, that he required to undertake office work only and was directed to discuss the matter is hardly something that would be considered unreasonable in the circumstances of the case here. Moreover, Mr Ree’s inability to “defend himself” is a misnomer as he was offered that chance and advised he did not have to do so until he was (a) ready and (b) the 17 November 2021 letter was provided, yet chose actively to not take any part in the process at any point.
A review of the evidence makes it plain that the Applicant was upset and angry at the Public Health Order and his requirement for vaccination status, was aware of the impending vaccination date, and was expressing his views on those matters in various ways prior to 28 October 2021. Moreover, it is clear that the Applicant was actively seeking a way to avoid compliance with the Public Health Order and lawful direction of his employer. Those factors ultimately led to those views being expressed to Year 9 students and the complaint, fairly, being made by a concerned parent. Indeed, the immediate post-meeting clinical material suggests that his focus remained on the Public Health Order and vaccine requirements as opposed to the complaint itself.
Taking an objective view of the matters as the presented themselves on the morning of 28 October 2021, and balancing the rights of the children, their parents, the Respondent and the Applicant whilst weighing the public health and related factors at play it cannot possibly be said that the Respondent’s conduct was not reasonable.
On that basis there ought be an award for the Respondent.”
Counsel for the applicant submitted that the action of the respondent was not reasonable as follows:
“The Respondent’s actions were not fair and reasonable for a number of reasons, including because Mr Rees was:
(a)Ambushed;
(b)Not provided with any information or particulars about why he was being punished, despite making repeated requests for this information;
(c)Told, in these circumstances, that he was not permitted to obtain details himself of the allegations either;
(d)Mistreated;
(e)No support person was provided to him, and
(f)Prevented from being able to properly defend himself as a result of the Respondent’s ban on him contacting people and as a result of the Respondent requiring him to contact them, and obtain consent, prior to contacting any relevant witnesses.”
It is well settled that the respondent bears the onus of proof in establishing a s 11A defence. This onus is in respect of all matters that arise under s 11A. In the context of the other concessions made in this case, this means that it bears the onus of establishing that its actions were reasonable. This is a question of fact to be determined on the evidence before me.
As President Phillips pointed out in Van Vilet the test of reasonableness does not equate to a test of perfection.
The applicant submits that he was “ambushed” and was not offered the opportunity to have a support person present at the meeting.
It is true that he was not offered a support person. The mere fact of this does not of itself deem the respondent’s actions unreasonable. It is a factor to be taken into account but it is not determinative. The actions of the respondent must be judged as a whole.
The respondent bears the onus of proof. In evidence there is the parental complaint and the results of the investigation.
The applicant has not provided any evidence in these proceedings to traverse the allegations made by the respondent (as founded on the parental complaint) about what he said to the year 9 class. The applicant has provided two statements of evidence in these proceedings dated 27 June 2023 and 23 July 2024.
In his statement dated 27 June 2023 he does not seek to traverse the particulars of the allegations of what he is alleged to have said to the year 9 students about the COVID-19 vaccine mandates but says that the investigation was never finalised and that he was teaching the curriculum and that it is unfair. He gave evidence:
“It is my opinion that the allegations levelled against me were unfair and unreasonable given I was teaching the curriculum.”
In terms of the investigation not being finalised, I note that the applicant declined to participate in the investigation. He was subsequently terminated from his employment but not because of this complaint and his termination is not relevant to this determination.
The respondent received a complaint from a parent of a year 9 student in the applicant’s class.
That was received by email by the principal Ms Gaye McManus well after business hours in the evening of 27 October 2021.
That complaint was articulated in an email from a parent that in broad terms complained that the applicant had made inappropriate comments to his Yr 9 class about the Covid vaccine mandate including references to Hitler and the Nuremburg trials.
The principal immediately sent an email to Steve Naduduary a relevant officer employed by the respondent essentially asking for advice on how the complaint should be responded to. The next morning before class was due to start on the morning of 28 October 2021 at about 8.45am the applicant was asked by the deputy principal Ms Lauren Shinfield to attend the principal’s (Ms McManus) office. The principal was away that day and Ms Shinfield was acting in her stead. There is no evidence from Ms Shinfield who declined to give a statement to the investigator because of her own health issues.
The applicant gave evidence in his statement dated 27 June 2023 about what transpired on 28 October 2021 and what Ms Shinfield said to him as follows:
“On 28 October 2021 I attended work as normal and was approached by the Deputy Principal Lauren Shinfield at about 8.45 am and asked to attend the principal’s office. Principal Gaye McManus was away attending to other school duties.
It was in the principals office that I was advised by Mr Shinfield that a complaint had been made about me directly to the Catholic education archdiocese. I asked Ms Shinfleid what the complaint was about. She advised me that she was not obliged to tell me any details about the complaint. She also told me that I was no longer permitted to conduct any teaching duties until the complaint was fully investigated.
I felt immediate anxiety I was humiliated. I had no idea what the complaint was about and the fact that I was not being told anything made me sick with worry. If I knew what the complaint was about I could start to process it but not being told was extremely difficult.
Ms Shinfield then told me to remain in the teacher’s staff room at my desk for the remainder of the day. Whilst in the staff room, Principal Gaye McManus rang me to check on my welfare. I probed Ms McManus about the complaint. I was getting more anxious as the day went on. I was confused as to why I was not being told what the complaint was. She too advised me that she was not obliged to discuss the matter with me.
Immediately my mind went to the worst case scenario in that I had been accused psychically or psychologically harming a child. I was mortified that this could be the case but nobody would confirm it.
By this stage I had two people who knew the details of the complaint but would not disclose it to me, My anxiety was through the roof. I felt like I had been found guilty of something without having any opportunity and/or right to defend myself.”
In her statement dated the principal Gaye McManus confirms that details of the complaint were not provided to the applicant on 28 October 2021 and were later provided in a letter to the applicant. This appears to be the letter dated 2 November 2021 outlining in broad terms the complaint which was then further particularised in the letter dated 17 November 2021.
The meeting with the deputy principal Ms Lauren Shinfield was on Thursday
28 October 2021. The applicant spent the day at his desk as requested. He says he was left without instructions as to what to do. One could readily imagine that as a teacher he would have work to perform that did not involve face-to-face teaching – preparing for lessons, marking and the like. The applicant did not return to work on Friday 29 October 2021 and consulted his doctor on Monday 1 November 2021 and was certified unfit. The respondent seeks to make much of the delay between going off on the 29 October and not seeing his doctor until 1 November 2021. This is not a meaningful delay and no moment can be made off it – the weekend intervened.
An investigation process was commenced by the respondent, the commencement of which is not considered to be unreasonable. The manner of the conduct of an investigation, including any delay in providing the applicant with the particulars of the complaint, depending on the evidence, is relevant to a determination of whether the disciplinary action may be considered unreasonable. At the time of receiving the complaint, it was considered by the respondent that the allegations were of sufficient seriousness to warrant as an interim measure (pending the conduct of an investigation) that the applicant be removed from face-to-face teaching. He could still attend the school but was directed to remain at his desk in the staffroom instead of face-to-face teaching. The determination of whether the action taken by the employer was reasonable requires careful consideration of the evidence before me.
The applicant’s evidence is that he was told on 28 October 2021 that there was a complaint but he was not given particulars of the complaint. He asked for particulars from both the deputy principal Ms Shinfield and then from the principal Ms McManus when she called him later that day. Both Ms Shinfield and Ms McManus declined to provide him with particulars of the complaint. It seems he was not told of the nature of the complaint even in the most general of terms.
The applicant says he was left in the dark and to speculate as to what the precise nature of the allegations might be and that this caused him distress and anxiety.
The applicant says that he was not provided with any more detail about the complaint until a letter dated 2 November 2021 which outlined the complaint in broad terms which was then not further particularised until a letter dated 17 November 2025. The applicant submits that the delay in providing him with particulars of the complaint was unreasonable. He also says it was unreasonable not to offer him the opportunity of a support person to be present with him at the meeting of 28 October 2021.
By the time he received the first letter dated 2 November 2025 he had already gone off work (he did not return to work on Friday 29 October 2021, the day after the meeting on
28 October 2021) and he saw his doctor on Monday 1 November 2025 and was certified unfit for work. He in fact never returned to work and was subsequently terminated for reasons unrelated to the determination of the claim before me.
There is no evidence before me from the respondent which satisfactorily explains, in circumstances where the respondent was concerned to act on the complaint to the extent that they immediately removed the applicant from face-to-face teaching, why it was necessary for them to delay providing the applicant with even the broadest reference to the nature of the complaint. It is true that the respondent has a duty of care towards the students and must act in manner that protects them from harm. It also owes a duty towards its employees to behave fairly and in manner that protects them from harm. It is true that this is a delicate balance and a difficult and complex issue for employers. It is also true that all this occurred in the context of a global pandemic with all the attendant stress on employers, employees and parents and students which that entailed. In these circumstances the action to remove the applicant from face-to-face teaching pending the outcome of an investigation might be considered reasonable and an action reasonably undertaken to protect the students from harm to their mental health, real or perceived. However whilst being careful not to hold the respondent to a standard of perfection, basic fairness dictates in my view that the applicant be informed at least in a general way the nature of the allegations made against him, particularly in circumstances where the applicant had a prior work-related psychological injury but even if he had not. There is no reason given in the evidence before me as to why the applicant could not be informed on 28 October 2021 at least in a general way as to the nature of the allegations made against him particularly when the applicant was taking adverse steps against the applicant by immediately removing him from face-to-face teaching. The respondent submitted that he would have known what the complaint was about given he engaged in the behaviours. It is not for the applicant to surmise what a complaint may be about. It is for the respondent as a matter of fairness to tell him what the complaint was about in circumstances where they are taking action against him (the immediate removal from face-to-face teaching which is after all the very essence of the role of a teacher).

Some particulars of the complaint were provided by letter dated 2 November 2025 but the provision of these particulars did not coincide with the applicant being informed that a complaint had been made and he was being removed from face-to-face teaching. The applicant gave evidence that as a result of him not being told what the complaint was about he experienced distress and anxiety. The applicant’s experience of distress and anxiety does not however determine the question of whether, objectively, the employer’s actions were reasonable.
Each case must be judged on its own facts. In these circumstances, the delay in providing the applicant with particulars of the parental complaint concerning behaviours he is alleged to have engaged in towards the students is one of the matters I have to weigh in the balance in determining whether the action taken or proposed to be taken by the respondent was reasonable. I also have to weigh in the balance that despite taking such a serious step as removing a teacher from face-to-face teaching, the respondent did not give the applicant the opportunity to have a support person present at the meeting on 28 October 2021 where he was informed he was being removed from face-to-face teaching (pending an investigation).
The question of whether an employer’s actions were reasonable is a matter for factual determination. I have to make a determination on the balance of probabilities. I have to weigh all of the evidence in the balance. I have done that here and whilst the instigation of the investigation may be considered reasonable in response to allegations which may be considered to potentially constitute harm to the students, the process must be fair to all parties. Fairness forms the basis of reasonable action taken in relation to discipline. When I weigh all of the evidence in the balance, I cannot be satisfied that the disciplinary action taken by the respondent was reasonable because the respondent has not explained why it was necessary to not inform the applicant of the nature of the allegations made against him at the same time or at least on the same day that they removed him from face-to-face teaching. There is nothing on the face of the complaint that suggests that the nature of the complaint could not be revealed to the applicant in broad terms at the very least. If it is the respondent’s case that he couldn’t be told because they hadn’t yet started the investigation into the complaint, that is not reasonable because fairness, in the particular circumstances of this case, dictates if a penalty (disciplinary action in the form of immediate removal from face-to-face teaching) is being imposed on an employee because of a complaint then at the very minimum the broad terms of the nature of the complaint should have been provided at that meeting on 28 October 2021. In any event this could not be the explanation because they revealed broad terms of the complaint in a letter dated 2 November 2021 without the results of the investigation being known. In the particular circumstances of this case, in the absence of evidence of some good reason not to tell the applicant about the nature of the complaint against him at the same time as he is being told he is being removed from face-to-face teaching, then I am not satisfied on the balance of probabilities that the action of the employer taken or proposed to be taken in relation to discipline was reasonable. When all of the evidence is weighed on the balance of probabilities, I find that the action taken or proposed to be taken by the respondent in relation to discipline was not reasonable. The defence fails and the applicant is not precluded from the recovery of compensation.
It is not in dispute that the applicant was totally incapacitated or has no current capacity for work for all relevant periods of the claim. PAIWE is agreed at $2,320.
In these circumstances of agreement, counsel for the respondent made no submissions on quantum of weekly compensation or against a general order for s 60 expenses.
Accordingly awards in the applicant’s favour will be made as sought as follows:
(a) the respondent pay the applicant weekly compensation, on the basis of a PIAWE of $2,320 (subject to indexation), at the rate of $1,856 (subject to indexation) from 15 July 2022 to date and continuing, pursuant to s 37 of the Act 1987, and
(b) the respondent pay the applicant’s s 60 expenses on production of accounts and/or receipts.

[2025] NSWPIC 445

29 August 2025