Rock Logistics Pty Ltd v Chelin - [2024] NSWPICPD 39

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Rock Logistics Pty Ltd v Chelin [2024] NSWPICPD 39
APPELLANT:	Rock Logistics Pty Ltd
RESPONDENT:	Noel Chelin
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W859/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	27 June 2024
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 25 May 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – principles applicable to disturbing findings of fact on appeal – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) applied – Section 11A(1) of the Workers Compensation Act 1987 – whether the respondent’s psychological injury was wholly or predominantly caused by the appellant’s actions with respect to discipline or the provision of employment benefits – Heggie; Department of Education and Training v Sinclair [2005] NSWCA 402 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Gaitanis, counsel Bartier Perry Lawyers
Respondent:
Ms L Goodman, counsel Kells The Lawyers
DECISION UNDER APPEAL:	Chelin v Rock Logistics Pty Ltd [2023] NSWPIC 241
MEMBER:	Ms K Garner
DATE OF MEMBER’S DECISION:	25 May 2023

INTRODUCTION AND BACKGROUND

Mr Noel Chelin (the respondent) was employed by Rock Logistics Pty Ltd (the appellant) as a “shunt driver”. The work involved moving trucks and trailers to and from sheds and loading bays in preparation for the delivery of goods on a site operated by another organisation, Ausreo Pty Limited (Ausreo). He commenced that work in or about September or October 2019.
The respondent alleged that on 27 and 28 August 2021 he had conversations with the Logistics Manager (the respondent’s direct manager), Mr John Smith, and the appellant’s Business Manager, Mr Jason Sams, in relation to his intentions in respect of receiving a COVID-19 vaccination. The respondent asserted that in those conversations, he felt that his employment was being threatened, which caused him psychological injury.
The respondent made a claim for weekly payments of compensation and treatment expenses. The appellant denied liability, asserting that:
(a)    the injury did not arise out of or in the course of the respondent’s employment;
(b)    the respondent’s employment was not the main contributing factor or substantial contributing factor to the injury;
(c) the injury was not a psychological injury within the meaning of s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act);
(d)    the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken in respect of discipline, dismissal, transfer or the provision of employment benefits, and
(e)    the respondent was not incapacitated for work and any treatment was not reasonably necessary as a result of the injury.
The respondent commenced proceedings in the Personal Injury Commission (the Commission) and the dispute proceeded to arbitration. In respect of the categories of actions referred to in [3(d)] above, the appellant relied only on the categories of “discipline” and the “provision of employment benefits.” The Member of the Commission determined that:
(a)    the respondent suffered the injury as alleged;
(b)    the respondent’s employment was a substantial contributing factor and the main contributing factor to the injury;
(c)    the actions taken by the appellant did not constitute discipline or the provision of employment benefits;
(d)    the actions were not reasonable;
(e) the appellant failed to establish its defence pursuant to s 11A of the 1987 Act, and
(f)    the respondent had an entitlement to payments of weekly compensation and treatment expenses associated with his injury.
The appellant appealed the decision, essentially in respect of the Member’s determinations relating to its defence pursuant to s 11A of the 1987 Act.

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.”
Both parties indicate that they are content for the appeal to be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions and supplementary submissions by the parties, including 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE RELEVANT EVIDENCE

The respondent’s statement evidence

The respondent provided a statement dated 25 July 2022.[1] He described the requirements of his job, advising that the site upon which he worked was operated by Ausreo, who manufactured steel mesh and reinforcement used for construction. He said that he was required to load those products onto trucks operated by employees of the appellant who would deliver the products to the construction sites. The respondent indicated that he was not a delivery driver and his only contact with the drivers was during the loading process and when the drivers returned to the site.
[1] Application to Resolve a Dispute (ARD), pp 1–5.
The respondent stated that on 27 August 2021, he was approached by Mr Smith, the appellant’s Logistics Manager. He said that Mr Smith asked him if he intended to undergo a COVID-19 vaccination. The respondent stated that he replied that he was not intending to do so. He indicated that Mr Smith did not appear to have a problem with his answer but had informed him that the drivers who were driving to the construction sites were undergoing the vaccination in order to enter the sites. The respondent said that he was not asked to have the vaccination.
The respondent stated that, on the same day, he asked Mr Smith what would happen when he attended work on the following Monday (30 August 2021). He explained that a memo was issued to Ausreo staff outlining the NSW Health Orders and indicated that employees living outside of the nominated local government areas of concern could attend work regardless of their vaccination status. The respondent said that Mr Smith rang the manager of Ausreo, who, to his recollection, advised that the respondent could continue to work, provided that he continued with the COVID-19 testing requirements and did not live in an area of concern (which he did not). The respondent said that later that afternoon, Mr Smith advised him that he would receive a call from Mr Sams, the appellant’s Business Manager, who would discuss the COVID-19 vaccinations with the respondent.
The respondent confirmed that he received a telephone call from Mr Sams on 28 August 2021, and that Mr Sams enquired as to the respondent’s position in relation to the vaccination. The respondent advised that he pointed out that the NSW Health Orders did not require him to be vaccinated, he did not intend being vaccinated, and that Ausreo had no issue with his position. The respondent stated that Mr Sams explained that there may not be a problem if he was unvaccinated for a few days, but it would be an issue if he remained unvaccinated. He said that Mr Sams then told him that unless he was vaccinated, it could be difficult to retain him as an employee. The respondent considered that that statement implied that he would lose his job if he remained unvaccinated and he became extremely anxious, so he ended the telephone call. He described his physical symptoms, which he said settled after a while, but he felt angry and resentful.
The respondent stated that over that weekend he kept ruminating about the conflicting information that he had received from both Mr Smith and Mr Sams, and he began to wonder whether his employment had ceased and whether he could financially support his family. The respondent said that by Monday 30 August 2021, he felt psychologically unwell and did not attend work.
The respondent indicated that at about 3 pm on that day, he received a message from Mr Smith, enquiring as to what was happening, as the appellant had not heard from him. The respondent told Mr Smith about the telephone conversation he had with Mr Sams on Saturday 28 August 2021. He said that he told Mr Smith that Mr Sams had said that he was no longer employed because he was unvaccinated, and Mr Smith advised him that he would ascertain what was happening. The respondent indicated that he asked Mr Smith to forward to him the vaccination policies and any policies that would exclude him from working on the site, but Mr Smith never gave him anything. He said he also told Mr Smith he would not be working between 30 August 2021 and 3 September 2021. He described being extremely stressed and upset.
The respondent reported that on 3 September 2021, he awoke feeling distressed and agitated because he had waited for a week to get a response from the appellant about the policy in relation to his vaccination status. He said that he called Mr Smith that afternoon to inquire as to what was happening, and Mr Smith told him that Ausreo and the appellant were considering implementing mandatory vaccinations from 6 September 2021. The respondent said that this meant that he could only return to work if he was vaccinated, or if he had a medical exemption. He stated that he reminded Mr Smith that the NSW Public Health Orders did not require him to be vaccinated.
The respondent said that he attended his general practitioner that afternoon seeking a medical exemption from the vaccination because of his declining psychological symptoms of stress and anxiety caused by his work. He stated that the doctor declined to provide him with an exemption, he became extremely distraught, argued with the doctor, and walked out in a rage.
The respondent indicated that he then telephoned Mr Smith and advised him that the doctor refused to give him a medical exemption, but Mr Smith tried to interrupt him and told the respondent to “shut up.” He said he indicated to Mr Smith that his mental state would lead him to prison or suicide, he swore at Mr Smith and hung up. He said he was driving erratically and physically shaking. He rang his wife, intimating to her that he intended to commit self-harm, and drove to a bridge with the intention of jumping off the bridge. He said he took a photograph of the bridge and sent it to Mr Smith, telling Mr Smith to “f*** off”. He said that the police arrived, he was arrested and was admitted to Campbelltown Hospital, but was released into the care of his wife pending voluntary admission to the Northside MacArthur Clinic for treatment of his anxiety and depression. He was admitted on 8 September 2021, diagnosed as suffering from anxiety and major depression, and was discharged on 21 September 2021.
The respondent indicated that he thought that the appellant had handled the matter poorly, he had never been provided with the requested documents, and the appellant did not contact him at all to enquire as to his well-being.
The respondent described his ongoing symptoms and treatment regime. He disclosed that he had a previous history of depression and some prior attempts at self-harm, but with medication his symptoms had been stable for two and a half years. He said he was leading a normal and productive life, enjoyed his job and looked forward to the future. He stated that, since the work-related incidents, he has been unable to work because of his mental state.
The respondent signed an earlier statement dated 1 October 2021 taken at interview by the appellant’s insurance investigator.[2] The content of that statement was largely consistent with his subsequent statement. He did, however, also indicate that in the conversation on 28 August 2021, Mr Sams had said that:
(a)    with 80 employees on site, it would be too hard to keep track of things so that Ausreo and the appellant were considering enforcing mandatory vaccinations for employees to continue to work;
(b)    the respondent would not be able to attend work on 30 August 2021 if he was unvaccinated, and
(c)    the appellant would have no position to offer the respondent.
[2] Reply to Application to Resolve a Dispute (reply), pp 11–13.
The respondent said that, following the telephone call, he was distressed and extremely upset, given that Mr Sams called him on a Saturday, which was not a workday, he had already had approval to work from Ausreo, and he was concerned about how he would support his family with no period of notice being provided that his employment was to be terminated.

The appellant’s statement evidence

Mr John Smith, the appellant’s logistics manager

Mr Smith provided a statement dated 6 October 2021.[3] He confirmed that there was a conversation between Mr Sams and the respondent about Ausreo’s requirement for the appellant’s drivers to be vaccinated in accordance with the State Government’s mandate in respect of the construction industry. He said that he did not have that conversation with the respondent, but he did confer with Mr Sams about it. He stated that Mr Sams said that he advised the respondent that it would be difficult for the appellant to find work for the respondent if he remained unvaccinated. Mr Smith asserted that the respondent was not told that he would no longer have a job.
[3] Reply, pp 15–18.
Mr Smith confirmed that the respondent was employed at Ausreo’s Wetherill Park depot and the respondent was the “nighttime yard shunter”. He described the respondent’s duties and commented that the respondent performed his work well.
Mr Smith stated that the appellant had recently received an email from Ausreo in respect of the government mandated COVID-19 vaccination regulations for the construction industry, which required that workers could not work until they had received at least one vaccination. Mr Smith said that the appellant was required to keep a spreadsheet of those vaccinated and was required to test for COVID-19, which it did twice per week, and to enter the test result on the spreadsheet.
Mr Smith expressed the view that the respondent was not keen about being tested but when he was informed that it was required, he reluctantly accepted. He added that they had conducted a toolbox meeting in relation to the mandatory testing but did not have a toolbox meeting about vaccinations because the respondent was the only employee who had an issue with being vaccinated. He pointed out that 95% of the staff had received their first dose of the vaccine.
Mr Smith observed that it would be difficult to find other work for the respondent to do if he remained unvaccinated because all of the appellant’s clients were in the building and construction industry and COVID-19 vaccinations had been mandated by the government for those industries. He explained that, although the respondent was not required to visit other construction sites, the respondent did have close contact with the drivers who were required to travel to those sites, so there was a risk of transmission.
Mr Smith stated that the respondent had spoken of his past mental health disorders and had experienced family issues in relation to his daughter. He said that he received a message from the respondent that the respondent was intending to throw himself off a bridge, Mr Smith reported the message to Mr Sams, and Mr Sams directed him to call the police, which he did.

Mr Jason Sams, the appellant’s business manager

Mr Jason Sams provided a statement dated 5 October 2021.[4] He said that he was based in Melbourne and could not recall ever meeting the respondent. He confirmed that the appellant had 80 staff in NSW, and said that, in accordance with the NSW Government health mandate, the appellant had set up mandatory COVID-19 testing in the workplace.
[4] Reply, pp 20–24.
Mr Sams advised that due to the NSW Government’s health advice, Ausreo and a number of their customers implemented a requirement that staff show proof of either a single COVID-19 vaccination or an arranged appointment to have the vaccine. He said that the appellant also decided to request the same information from the appellant’s employees. He explained that the appellant already had adopted “robust” recording of twice weekly COVID-19 testing of each of its employees. He added that, when the appellant implemented the vaccination requirements, there were six drivers (including the respondent) who had no plan to be vaccinated.
Mr Sams indicated that he contacted all of those six to discuss with them their thoughts about being vaccinated and the need for daily rapid antigen testing. He advised that the testing would cost an estimate of $30 per day per person, so that it was not a viable option, and the decision was made that it would not be conducted. Mr Sams said that, because the respondent worked at night, he intended to contact the respondent on the Saturday to discuss these matters with him. Mr Sams said that, in the meantime, the five other workers scheduled a vaccination.
Mr Sams stated that, although the respondent did not reside in a NSW local government area (LGA) of concern, Ausreo’s Wetherill Park depot was located in the Fairfield LGA, which was an area of concern. He added that many of Ausreo’s customers had in place the same conditions of entry, which was proof of a vaccination or a rapid antigen test.
Mr Sams stated that Mr Smith contacted him on Friday 27 August 2021 and informed Mr Sams that the respondent was refusing to comply with the vaccination requirements. Mr Sams said that he contacted the respondent on 28 August 2021 in order to discuss the matter with him and advised the respondent of the notifications the appellant had received from Ausreo and NSW Health in respect of the requirements for either proof of rapid antigen testing or proof of having been vaccinated. Mr Sams said that he advised the respondent that the appellant would not be implementing rapid antigen testing. He said he asked the respondent what his thoughts were in relation to being vaccinated.
Mr Sams indicated that the respondent told Mr Sams that it was none of the appellant’s business and Mr Sams responded that the appellant preferred its drivers to be fully vaccinated and would otherwise find it difficult to provide the respondent with ongoing work. Mr Sams said that the respondent terminated the call. Mr Sams stated that he sent the respondent a text message on the Monday in which he confirmed what had been discussed in what he called the “brief” conversation on the Saturday.
Mr Sams said that on the following Friday he received a telephone call from Mr Smith, who advised him that the respondent had threatened to throw himself off a bridge, so he advised Mr Smith to call the police.
Mr Sams stated that the appellant had 150 employees nationally and the respondent was the only one who steadfastly refused to be vaccinated. He advised that he was aware that the respondent believed that his employment had been or was to be terminated. Mr Sams stated that he did not terminate the respondent’s employment and nor did he say that the respondent’s employment would be terminated or that the respondent would be stood down. He asserted that he simply told the respondent that it would be difficult to provide the respondent with work if he was unvaccinated. Mr Sams explained that if the respondent was able to fund the daily rapid antigen testing or was able to provide a medical exemption from having the vaccine, the appellant could have come to some arrangement with the respondent, but the appellant was unable to explore other options because the respondent had terminated the conversation.

Mr Sams said that he had was aware that the respondent had experienced previous mental health issues and issues with his daughter but said that he could not comment further because he had never met the respondent. He noted that the respondent had asked Mr Smith to provide him with a copy of the appellant’s relevant policy. Mr Sams told Mr Smith to advise the respondent that the appellant did not have a specific policy but that the appellant was operating in accordance with the NSW Health advice and instructions. Mr Sams said he asked Mr Smith to tell the respondent to call Mr Sams, but the respondent did not contact him.
Mr Sams indicated that he could not say whether there could be scope to provide the respondent with alternate duties because there was a great deal of uncertainty in the community and among employers throughout the nation in relation to COVID-19 vaccinations. He said that the uncertainty was not limited to the appellant’s business or the situation with the respondent. He added that, in the context of the respondent’s mental state, he was concerned about safety issues if the respondent was to perform driving duties in a heavy vehicle, irrespective of his COVID-19 vaccination status.

The medical evidence

Dr Robert Gertler, consultant psychiatrist

Dr Robert Gertler was asked by the respondent’s legal representatives to examine the respondent and provide a medical opinion. He examined the respondent on 26 April 2022 and provided a report dated 2 May 2022.[5] He advised that he had reviewed the documents that had been provided to him and had taken them into account when preparing his report.
[5] ARD, pp 94–99.
Dr Gertler took a brief history of the respondent’s employment with the appellant, described by the respondent as a supportive environment in which the respondent was only required to deal with people with whom he had no difficulties, up until 2021. Dr Gertler recorded that, with the onset of the COVID-19 pandemic, the respondent was advised that it was unnecessary for him to undergo a COVID-19 vaccination because of the nature of his duties. Dr Gertler recorded, however, that on 28 August 2021 the respondent was advised by his manager that his decision not to be vaccinated would create a problem with his employment, and he would likely lose his job.
Dr Gertler took the further history that the respondent became agitated and frustrated during the conversation and decompensated emotionally, which prevented him from working. Dr Gertler said that the respondent was uncertain as to his employment status until he contacted his employer on 3 September 2021, who told the respondent that he was definitely required to be vaccinated before he could return to work.
Dr Gertler noted that the respondent consulted his general practitioner, who refused to grant the respondent an exemption from the requirement to be vaccinated. He recorded that the refusal precipitated an increase in the respondent’s agitation, and he became suicidal, ultimately being arrested by police and taken to Campbelltown Hospital. Dr Gertler further noted that the respondent was psychiatrically assessed, prescribed psychotropic medication, discharged, and admitted to Northside Macarthur Private Hospital a few days later for ongoing treatment until 21 September 2021. He took the history that, after discharge, the respondent consulted a psychologist and then continued under the care of his general practitioner, who prescribed ongoing psychotropic medication.
Dr Gertler said that the respondent continued to ruminate about his employment, about the reasons and processes by which he was told he was required to be vaccinated and the fact that the appellant had not made any further contact with him. Dr Gertler recorded that the respondent felt a loss of trust in other people, preferred to avoid people, and felt cast aside without the appellant having offered an apology. He was experiencing erratic sleep patterns and nightmares about the past. Dr Gertler said that the respondent remained depressed, had poor self-esteem, lacked motivation, and lacked purpose.
Dr Gertler noted that the respondent had a past history of anxiety and depression in the context of family difficulties in 1996 and/or 1997, and depression with suicidal thoughts while experiencing relationship problems in 2019, resulting in admission to the Northside MacArthur clinic for three weeks. Dr Gertler reported that the respondent’s condition stabilised and the respondent denied any further symptoms of anxiety or depression until the events of 2021.
Dr Gertler further noted that the respondent presented as agitated, angry, and depressed. He diagnosed the respondent as suffering from an adjustment disorder with fluctuating depressed mood caused by his experiences at work in relation to his unwillingness to be vaccinated against COVID-19. He opined that the respondent “has been unable to adjust to that experience, has become untrusting, socially withdrawn, lacking in self-esteem and motivation, with a disturbed sleep pattern, and recurrent angry rumination.”[6] He considered that the respondent’s ability to return to any form of employment was significantly impacted by his psychiatric condition and that the workplace experience was a substantial contributing factor to the respondent’s condition, given that up until that time the respondent had been working without difficulty. He recommended continuing treatment.
[6] Dr Gertler’s report, ARD, p 97, [2].
Dr Gertler acknowledged that the respondent had a pre-existing depression resulting from relationship issues, requiring treatment as an in-patient, following which his emotional state “normalised”, and he suffered no ongoing psychiatric symptoms until the events in August 2021. Dr Gertler said that those events were unrelated to prior stressors, given that the symptoms of anger, loss of trust and social withdrawal were either not present to any degree or at all prior to 2021.

Dr Russel Davies, psychiatrist

Dr Russel Davies examined the respondent through Zoom Telehealth consultation and provided a report dated 5 August 2022 at the request of the appellant.[7] He took a history of the respondent being questioned by management as to his COVID-19 vaccination status and of the respondent indicating that he had elected not to be vaccinated. Dr Davies noted that the respondent was of the understanding that he could be entitled to remain working provided he continued to undergo regular rapid antigen testing but that the appellant had advised the respondent that he did not have a job anymore because of his unwillingness to be vaccinated. Dr Davies observed that the respondent’s belief was not consistent with the appellant’s statement evidence and factual investigation.
[7] Reply, pp 28–39.
Dr Davies indicated that it was his understanding that the appellant contacted the respondent on a weekend and advised the respondent that, as the respondent was not vaccinated, in the context of the pandemic and resulting policies and protocols, the appellant would have difficulty in providing him with work. Dr Davies said that the appellant advised the respondent to attend his general practitioner and seek an exemption, but at the consultation, the general practitioner refused to issue the exemption, the respondent became angry and walked out. Dr Davies noted that the respondent became suicidal and was ultimately admitted to Northside MacArthur Hospital. He said he did not have access to the respondent’s clinical notes but understood that the respondent was an in-patient at that clinic for two or three weeks.
Dr Davies reported that the respondent had had no contact with the appellant since he ceased work. Dr Davies noted that the respondent felty angry and abandoned and complained that he had not been provided with the appellant’s COVID-19 or vaccination policies despite having requested them in September 2021, and that the appellant had not considered alternate strategies to deal with his situation.
Dr Davies recorded that the respondent was having difficulties sleeping, experiencing low energy and lack of motivation, had considerable financial concerns, was irritable and felt overwhelmed and unable to work for anyone. Dr Davies briefly summarised the respondent’s treatment, noting that it appeared that the respondent was no longer taking medication or consulting his general practitioner. Dr Davies took a history of the respondent’s prior issues with depression and self-harm as a teenager and anxiety and depression about three years before the workplace events of 2021, after which, the respondent claimed, he made a full recovery. Dr Davies observed that the respondent’s mental state was:
“characterised by a pervasive sense of anger and injustice, irritability and with frequent recourse to expletives. He described feeling depressed and ‘suicidal every day’. He described poor sleep and diminished levels of concentration and energy and a potent sense of grievance towards his employer with whom he previously considered to be friends and with whom he enjoyed a jovial rapport and good relationship.”[8]
[8] Dr Davies’ report, reply, p 33.
Dr Davies considered that the respondent’s symptoms were consistent with a major depression precipitated by the breakdown in his relationship with the appellant following his objection to being vaccinated against COVID-19. Dr Davies commented that the respondent appeared to harbour a strong sense of grievance, anger and disappointment with the appellant. He diagnosed a major depressive disorder with agitated distress on the background of previous vulnerabilities, emotional instability and poor impulse control. He was of the view that the respondent’s employment was a substantial contributing factor in the development of his current condition and the workplace issues continued to be a perpetuating factor in the respondent’s dysfunction and mental health disorder.
Dr Davies opined that, accepting the information from the appellant and the appellant’s factual enquiry to be correct, the predominant cause of the respondent’s disorder related to the respondent’s non-compliance with the appellant’s COVID-19 vaccination policies and protocols, which appeared to be on ideological grounds. He said that he was of the view that the whole or predominant cause of the injury was the appellant’s reasonable action, and there were no other factors outside of the respondent’s employment that were causative, although whether the actions were reasonable was an industrial, rather than a medical consideration. Dr Davies added that, in the context of the developing COVID-19 pandemic and the appellant’s vaccination requirements, in his view, it was likely that the respondent would have encountered difficulties with other employers at about that time. He believed that:
(a)    the employment with the appellant was the main contributing factor to the respondent’s injury;
(b)    the appellant and the respondent had reached an impasse in the relationship, so that the respondent was unlikely to return to the workplace, and
(c)    without a resolution of the impasse, the respondent was unlikely to overcome his inability to return to work.

The Campbelltown Medical and Dental Centre

The respondent provided a copy of the Campbelltown Medical and Dental Centre notes, which commenced from 2006.[9]
[9] ARD, pp 880–994.
On 12 November 2006, Dr Laurence Bloom, general practitioner, referred the respondent to Ms Lynette Toms, psychologist for treatment of depression, which had been present since the respondent’s teenage years, and for which medication consisting of Zoloft, Prozac and Efexor was not helpful.[10] On 14 July 2007, Dr Brian Crickitt referred the respondent to Ms Mary Attard, psychologist, for treatment of anxiety and panic attacks in the context of long-standing depression.[11] On 9 February 2015, Dr Dai Nguyen, general practitioner, referred the respondent to Dr Yajuvendra Bisht, psychiatrist, for treatment of depression.[12] A GP Mental Health Treatment Plan was prepared by Dr Mohanad El-Rabaei on 14 August 2019,[13] which included the provision of psychotherapy for treatment of the respondent’s mental health issues of major depression and borderline personality disorder.
[10] ARD, p 885.
[11] ARD, p 910.
[12] ARD, p 926.
[13] Application to Admit Late Documents (AALD) dated 19 April 2023, p 461.
Dr K M Mominul Hassan prepared a GP Mental Health Treatment Plan on 16 August 2021.[14] Dr Hassan referred the respondent to Mr Peter Khnana for further psychological treatment on 16 August 2021 in respect of worsening depression in the context of the COVID-19 pandemic.[15] On 7 September 2021, Dr Hassan referred the respondent to the Northside MacArthur Clinic for urgent treatment because of “significant mental instability with self-concern for [self] harm in the context of work related issues.”[16]
[14] ARD, p 940.
[15] ARD, p 945.
[16] ARD, p 949.

Ms Sofie Schreuders, psychologist

The respondent consulted Ms Sofie Schreuders of the “At Full Potential” clinic, who treated the respondent between 19 November 2021 and 19 January 2022.[17] At the first consultation, Ms Schreuders recorded the history that the respondent had suffered from depression for a period of two years, and he had been stood down from work because he had not been vaccinated. She noted that the respondent complained that the appellant’s actions were not conducted in the correct manner, he had not received any paperwork from the appellant, and said that he was not required to be vaccinated. Ms Schreuders further noted that the respondent complained that Mr Sams had rung him on his day off, his general practitioner refused to give him an exemption, and that the respondent was under the impression that he no longer had a job.
[17] ARD, pp 805–813.

The Campbelltown Hospital notes

The Campbelltown Hospital notes were in evidence.[18] The notes disclosed that the respondent was admitted on 7 January 2000 in respect of suicidal thoughts and attempts at self-harm[19] and from 6 May 2019 to 22 May 2019 for treatment of an adjustment disorder with suicidal ideation.[20]
[18] ARD, pp 467–804.
[19] ARD, p 779.
[20] ARD, pp 491–493.
The notes confirmed that the respondent was admitted to the hospital on 3 September 2021, complaining of stressors at work on the background of the introduction of mandatory COVID-19 vaccinations. He was feeling depressed with suicidal ideation and complained of having no contact with the appellant. A past history of a borderline personality disorder was noted.[21]
[21] ARD, p 476.

Ausreo’s memorandum relating to the NSW Government COVID-19 NSW Health Orders

Ausreo issued a memorandum to its employees clarifying the effect of the relevant NSW Government Public Health Orders.[22] The document listed what were described as Local Government Areas of Concern. It noted that the Ausreo Wetherill Park location (where the respondent worked) was in the Fairfield Local Government area and the employees who lived in that area were permitted to attend work. The document advised that employees living outside the areas of concern could attend work, regardless of their vaccination status, and the Ausreo employees were advised to continue to undergo testing every 72 hours, regardless of their vaccination status.
[22] Reply, pp 1–3.

THE LEGISLATION

Section 11A(1) 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 MEMBER’S REASONS

The Member identified the nature of the alleged injury and the matters that remained in dispute between the parties. She noted that the appellant’s defence under s 11A of the 1987 Act was that the respondent’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken on behalf of the appellant in respect of discipline and/or employment benefits.
The Member summarised the statement evidence and the documentary evidence, including the contents of the Ausreo memorandum headed “COVID-19 NSW Health Orders Effective” as at 26 August 2021, as well as the medical evidence. She noted in detail the submissions of the parties.
The Member considered the question of whether the respondent had suffered an injury within the meaning of s 4 of the 1987 Act. She quoted from the observations of Snell DP in AV v AW[23] in respect of assessing the main contributing factor to the injury, Federal Broom Co Pty Ltd v Semlitch[24] in respect of whether there has been an “aggravation, acceleration, exacerbation or deterioration” of a disease within the meaning of s 4(b)(ii) of the 1987 Act and Attorney General’s Department v K[25] as to the issue of causation of the injury where it is dependent upon the worker’s perception of real events in the workplace.
[23] [2020] NSWWCCPD 9, [78].
[24] [1964] HCA 34, [7] per Kitto J; [9] per Windeyer J.
[25] [2010] NSWWCCPD 76, per Roche DP.
The Member considered a submission made by the appellant that the respondent’s credit was in issue because the respondent asserted that his mental state had been stable for a period of two and a half years and because the respondent did not disclose in his statement evidence the complaint he made to his general practitioner on 16 August 2021 as to the deterioration of his mental health. She observed, however, that the respondent’s evidence was mainly consistent with the evidence from other witnesses or was otherwise unchallenged. She found that, on the basis of the respondent’s evidence as a whole, his evidence did not lack credibility.
The Member weighed the evidence of the relevant factual events. In relation to Mr Smith’s evidence, she observed that Mr Smith denied having discussed with the respondent the requirement to have a COVID-19 vaccination, and Mr Smith stated that it was a conversation Mr Sams had with the respondent. The Member further observed that Mr Smith did not specifically address the respondent’s assertion that:
(a)    Mr Smith had a conversation on 27 August 2021 with the respondent in which Mr Smith enquired as to the respondent’s intention to be vaccinated;
(b)    Mr Smith told the respondent he would be able to continue to work because the respondent did not live in an area of concern, and
(c)    the respondent was told he should expect a telephone call from Mr Sams to discuss vaccinations.
The Member noted that Mr Sams’ evidence was that Mr Smith had advised him on 27 August 2021 that the respondent would not comply with the vaccination requirement. She said it was apparent that both Mr Smith and Mr Sams proceeded on the basis that the respondent did not intend to be vaccinated. The Member concluded that there were conversations between the respondent and Mr Smith on 27 August 2021 in which Mr Smith, after a discussion with the Ausreo manager, informed the respondent that he could continue to work because he was not from an area of concern, provided that the respondent complied with COVID-19 testing requirements.
The Member observed that the appellant did not challenge the respondent’s evidence, in particular his evidence that the Public Health Orders did not require him to be vaccinated. She further observed that the respondent’s evidence that there was no discussion about mandatory COVID-19 vaccinations at any of the toolbox meetings was corroborated by Mr Smith.
The Member concluded that at all times prior to the telephone conversation between Mr Sams and the respondent on 28 August 2021, there had been no discussion with the respondent in which the respondent was advised by the appellant that he would or might be mandated to have a COVID-19 vaccination. The Member added that there was no consultation with the respondent or the general workforce to that effect.

The Member referred to the respondent’s evidence that, in a telephone call on 28 August 2021, Mr Sams told him that it would be difficult to keep the respondent on as an employee if he was not vaccinated. She further referred to Mr Sams’ evidence that:
(a)    he informed the respondent that the appellant preferred all drivers to be fully vaccinated and that the business may find it difficult to provide the respondent with ongoing work if he was not vaccinated;
(b)    the respondent terminated the call, and
(c)    he confirmed the content of the conversation on 28 August 2021 in a text message to the respondent on the following Monday.
The Member made the following observations:
“Mr Smith’s evidence did not specifically address the [respondent’s] evidence regarding text messages between him and the [respondent] on the afternoon of 30 August 2020. Mr Smith does not specifically deny that the [respondent] informed him by text message that Mr Sams told the [respondent] that ‘I do not have a job on account of my vaccination status’, nor that Mr Smith instructed the [respondent] to ‘leave it with him and he would see what was going on’. Further, Mr Smith does not deny that the [respondent] asked Mr Smith to ‘forward me the vaccination policies and any policies that would exclude me from attending the worksite’. Mr Smith also does not specifically deny that the [respondent] told him that, because of his stress and emotional state, he would not be working before 3 September 2021.
Mr Smith did not address nor specifically deny the [respondent’s] assertion that, on
3 September 2021, the [respondent] telephoned Mr Smith, enquired what was happening, again asked Mr Smith to provide him with relevant vaccination policies and again reminded Mr Smith that the Public Health Orders did not require him to be vaccinated. Mr Smith did not deny that he then told the [respondent] that the [appellant] and Ausreo were ‘looking at implementing mandatory vaccinations as of 6 September 2021’.
The [respondent’s] evidence that he requested Mr Smith to provide him with the [appellant’s] COVID-19 vaccination policy, is consistent with Mr Sams’ evidence that he told Mr Smith to report to the [respondent] that the [appellant] did not have such a policy and that the [appellant] was working to the current NSW Health advice and instructions.”[26]
[26] Chelin v Rock Logistics Pty Ltd [2023] NSWPIC 241 (reasons), [91]–[93].
The Member noted that no text messages were in evidence.
The Member accepted that there was a conversation between Mr Sams and the respondent on 28 August 2021, as described by the respondent, and that Mr Sams told the respondent that it would be difficult for the respondent to continue to work for the appellant if he was unvaccinated. She further accepted that on 30 August 2021, the respondent requested a copy of the appellant’s COVID-19 policy, which Mr Sams indicated was not in existence, and thus the respondent was never provided with a copy. The Member considered it likely, and accepted that:
(a)    the respondent advised Mr Smith by way of a text message on 30 August 2021 that Mr Sams had informed the respondent that the respondent did not have a job because he was unvaccinated;
(b)    Mr Smith said that he would enquire as to what was going on, and
(c)    the respondent advised Mr Smith that he would not be working before 3 September 2021 because of the state of his mental health.
The Member observed that neither Mr Smith nor any other person from the appellant initiated any further contact with the respondent about the issue, and Mr Smith did not refer to or deny the respondent’s evidence about the telephone conversation on 3 September 2021. She reasoned that:
“I consider it likely, and accept that, on 3 September 2021, the [respondent] telephoned Mr Smith, enquired what was happening, again asked Mr Smith to provide him with relevant vaccination policies and again reminded Mr Smith that the Public Health Orders did not require him to be vaccinated. Further, Mr Smith then told the [respondent] that the [appellant] and Ausreo were ‘looking at implementing mandatory vaccinations as of 6 September 2021’. I accept that the [respondent] perceived Mr Smith’s statement to mean that the [respondent] could only return to work if he was vaccinated or had a medical exemption.”[27]
[27] Reasons, [101].
The Member proceeded to consider the medical evidence in relation to the question of whether the respondent had suffered a psychological injury and whether the respondent’s employment was the main contributing factor to the injury. The Member referred to the respondent’s evidence as to the onset of symptoms of anxiety and physiological symptoms on 28 August 2021, and stress and agitation on 3 September 2021. She noted that the respondent attended his general practitioner on 3 September 2021, complaining of declining mental health, stress and anxiety as a result of the situation at work. She remarked on the refusal of the doctor to provide the respondent with a medical exemption in relation to the vaccination and noted that shortly afterwards, the respondent threatened self-harm and was admitted to hospital for psychiatric treatment.
The Member referred to the evidence of Ms Schreuders, who took a history of the respondent having pre-existing depression and that the presenting problem was associated with the requirement to be vaccinated. She further referred to the evidence of the general practitioner’s refusal to issue an exemption. She noted that Dr Gertler and Dr Davies took a similar history, that Dr Gertler diagnosed an adjustment disorder with depressed mood, and Dr Davies diagnosed a major depressive disorder with agitated stress, which was an aggravation, acceleration, exacerbation or deterioration of the respondent’s pre-existing psychological condition. The Member further noted that Dr Davies was of the opinion that the respondent’s employment was a substantial and the main contributing factor to the injury.
The Member formed the view that the evidence supported the conclusion that the significant and main causal factor for the respondent’s psychological injury was the appellant’s conduct or proposed conduct in relation to the requirements to undergo vaccination against COVID-19.
She added that the medical evidence did not indicate that the general practitioner’s refusal to issue an exemption from the requirement to be vaccinated was a significant causal factor when compared to the appellant’s actions. She explained that the respondent had already developed psychological symptoms arising from the appellant’s conduct in relation to vaccination requirements.
The Member conceded that the medical evidence in respect of whether the injury was a new injury, or an aggravation of a pre-existing condition, varied. She observed that, while the respondent had a history of being treated for depression over a number of years, including during 2020 and 2021, the symptoms appeared to be well-managed and on 6 January 2021 he reported to Dr Hassan that his depression was controlled, and he was working full time. She noted that by 16 August 2021, the respondent’s psychological symptoms worsened, and he was referred to a psychologist, with the referral nominating a worsening of his depression in the context of COVID-19.
The Member observed that the independent medico-legal opinions were formed without the benefit of the history recorded in the clinical notes. She concluded however that, having regard to the whole of the evidence, she was satisfied that the respondent had suffered a psychological injury in the course of his employment pursuant to s 4(a) of the 1987 Act and that his employment was a substantial contributing factor. She further concluded that the respondent’s employment was the main contributing factor to the injury pursuant to s 4(b)(i) or to the aggravation, acceleration, exacerbation and deterioration of a pre-existing psychological condition pursuant to s 4(b)(ii) of the 1987 Act. She was also satisfied that the respondent’s condition was a psychological condition within the meaning of s 11A(3) of the 1987 Act.
The Member turned to consider the appellant’s defence pursuant to s 11A(1) of the 1987 Act, noting that the appellant asserted that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the appellant with respect to discipline and the provision of employment benefits. She noted that respondent disputed that the actions could be categorised as “discipline” or the provision of “employment benefits.” She further noted that the appellant bore the onus of proving the defence.
The Member referred to Kushwaha v Queanbeyan City Council,[28] a decision of Neilson CCJ, in which his Honour considered the meaning of “discipline.” She further referred to Northern NSW Local Health Network v Heggie,[29] Hamad v Q Catering Limited,[30] and Smith v Roads and Traffic Authority of NSW.[31]
[28] [2002] NSWCC 25.
[29] [2013] NSWCA 255 (Heggie).
[30] [2017] NSWWCCPD 6 (Hamad).
[31] [2008] NSWWCCPD 130.
The Member indicated that, on the basis of the medical and other evidence, she was satisfied that the cause of the respondent’s psychological injury was multi-factorial. She considered that at least a significant cause was the actual or potential threat to the respondent’s employment because of his unvaccinated status in circumstances where the appellant had imposed the requirement to be vaccinated as a condition for continued employment. The Member said that she was also satisfied that there were other significant causal factors, including the appellant’s failure to consult with the respondent, the inconsistencies between the statements of Mr Smith and Mr Sams, the inconsistency with the Public Health Orders and the failure to provide the respondent with the appellant’s COVID-19 policy as requested.
The Member observed that the appellant had not produced any medical evidence to support its position that the relevant action was wholly or predominantly taken or proposed to be taken with respect to discipline or the provision of employment benefits. She reasoned that there was no evidence that any disciplinary process had been initiated against the respondent and there was no evidence of any employment benefit being provided to the respondent.
The Member concluded that the appellant had failed to establish that the respondent’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline or the provision of employment benefits.
The Member indicated that, if she was wrong in respect of that finding, she was required to assess whether the appellant’s actions were reasonable. She said that she accepted that:
(a)    the respondent worked at night and had no contact with members of the public, although he did have contact with other drivers who did have such contact with the public;
(b)    at the relevant time, the Public Health Orders did not require the respondent to be vaccinated because he was outside of the areas of concern;
(c)    the Ausreo Memorandum concerned Ausreo employees but indicated that those employees who lived outside of the areas of concern could attend work even if they were not vaccinated;
(d)    on 27 August 2021, Mr Smith:
(i)spoke with the respondent about the respondent’s intention in relation to being vaccinated;
(ii)informed the respondent that Ausreo’s position was that he could continue to work because he did not reside in an area of concern, provided he complied with testing procedure, and
(iii)Mr Smith did not direct the respondent to become vaccinated;
(e)    there was no consultation with the appellant’s employees about COVID-19 vaccinations, and there was no discussion at any toolbox meeting because ultimately, the respondent was the only employee not intending to be vaccinated;
(f)    prior to 28 August 2021, the appellant did not advise the respondent that he would be required to become vaccinated;
(g)    Mr Sams called the respondent on 28 August 2021, which was the respondent’s day off, the respondent advised Mr Sams that Mr Smith had told him he could continue to work as long as he complied with rapid antigen testing, but Mr Sams indicated that it could be difficult for the appellant to provide the respondent with work if he was not vaccinated;
(h)    the respondent perceived that he would lose his job if he was not vaccinated;
(i)    the respondent had been given no warning that that would be discussed in the telephone call and was given no warning that that might happen, so that he was unprepared for the discussion and was not given the opportunity of having a support person with him at the time, and
(j)     on 30 August 2021, the respondent sent a text message to Mr Smith:
(i)indicating that he had been told that he did not have a job because he was unvaccinated;
(ii)asking Mr Smith for a copy of the appellant’s COVID-19 vaccination policy, and
(iii)advising that he was suffering from mental health issues so he would not be working before 3 September 2021.
The Member said that from that time, no-one employed by the appellant initiated any contact with the respondent and nothing was done by the appellant to correct or alter the respondent’s perception that he no longer had a job because he was unvaccinated. She noted that on 3 September 2021, the respondent contacted Mr Smith to remind him that he was not required to be vaccinated in order to work and asking for a copy of the appellant’s vaccination policy. She observed that, in that conversation, Mr Smith advised the respondent that Ausreo and the appellant were considering implementing mandatory vaccinations from 6 September 2021, which led the respondent to believe that he could only return to work if he was vaccinated or had an exemption from vaccination.
The Member further observed that the appellant did not offer the respondent assistance such as counselling through an employee assistance program or any other support, including consideration of making other working arrangements for the respondent. She added that the appellant never provided the respondent with a copy of the appellant’s COVID-19 policy, which appeared to be non-existent.
The Member did not accept the appellant’s submission that it was prevented from taking further reasonable action because the respondent had become angry and terminated the telephone call on 28 August 2021.
The Member observed that, in accordance with the Presidential authority of Van Vliet v Landscape Enterprises Pty Ltd,[32] it is not necessary for the appellant’s actions or proposed actions to be perfect for them to be considered reasonable. The Member said that she gave “regard to the fact that the relevant events occurred in the context of very serious threats presented by the COVID-19 pandemic, which was unprecedented in recent history.”[33] She accepted that:
“the [appellant] was dealing with a rapidly evolving situation which included health risks, government requirements and the requirements and expectations of its customers and the community at large and also rapidly evolving restrictions in place in the community and workplaces at that time.”[34]
And:
“the particular circumstances warranted a more flexible approach than might have been otherwise appropriate.”[35]
[32] [2022] NSWPICPD 49.
[33] Reasons, [136].
[34] Reasons, [136].
[35] Reasons, [137].
The Member observed, however, that after taking those matters into account, she was of the view that the appellant’s actions causing injury were unfair to the respondent and were therefore unreasonable. She concluded that the appellant had failed to establish that its actions or proposed actions with respect to discipline or the provision of employment benefits were reasonable.
The Member proceeded to determine the respondent’s entitlement to weekly payments and treatment expenses and issued her Certificate of Determination.
The Certificate of Determination issued on 25 May 2023, (which also contained an order for payment of weekly compensation itemised in a detailed schedule but is not included here as it is not relevant to the issues on appeal), records:
“The Commission determines:
1.     The [respondent] sustained psychological injury arising out of or in the course of his employment with the [appellant] on 28 August 2021.
2.     The [respondent’s] employment with the [appellant] was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease.
3. The [appellant] has not established a defence pursuant to s 11A of the Workers Compensation Act 1987.
4.     The psychiatric and psychological treatment provided to the [respondent] is reasonably necessary as a result of psychological injury sustained on 28 August 2021.
5.     The [respondent] had no current work capacity as a result of the psychological injury from 28 August 2021 to 12 December 2021 and had current work capacity from 13 December 2021 ongoing.
The Commission orders:
1. The [appellant] to pay the [the respondent] weekly compensation pursuant to ss 33 and 36 of the Workers Compensation Act 1987 as follows:
…
2. The [appellant] to pay the [respondent] weekly compensation pursuant to ss 33 and 37 of the Workers Compensation Act 1987 as follows:
…
3. The [appellant] to pay the [respondent’s] medical treatment and related expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.
4.     Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.”

GROUNDS OF APPEAL

The appellant nominates eight grounds of appeal, expressed as follows:
(a) Ground One: The Member erred in determining the issues of “wholly or predominantly caused” by “failing to identify whether that limb of the s 11A defence was ever established”;
(b)    Ground Two: The Member erred in determining the issues of “wholly or predominantly caused” by “conflating factors such as discipline and employment benefits and multi factorial factors including reasonableness of actions and the requirement for medical evidence as part of the determination of that question”;
(c)    Ground Three: The Member erred in law by “requiring medical evidence from the appellant as to questions of the applicability of discipline or the provision of employment benefits”;
(d)    Ground Four: The Member erred in law by not having the jurisdiction to determine the issue of “wholly or predominantly caused”;
(e)    Ground Five: The Member erred in law by exceeding “the scope of the dispute … [thereby] denying the appellant procedural fairness”;
(f)    Ground Six: The Member erred in law by determining the issue of “‘wholly or predominantly caused’ in a manner contrary to the respondent’s concession, thereby denying the [appellant] procedural fairness”;
(g)    Ground Seven: The Member erred in law and fact by “failing to properly determine the issue of discipline and the provision of employment benefits”, and
(h)    Ground Eight: The Member erred in law and fact by “failing to properly determine the issue of reasonable action.”

SUBMISSIONS

As to Ground One