Ryan v Alto Pennant Hills Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ryan v Alto Pennant Hills Pty Ltd [2024] NSWPIC 352
APPLICANT:	Matthew Ryan
RESPONDENT:	Alto Pennant Hills Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	2 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by worker for weekly payments for accepted psychological injury resulting from the implementation of the employer’s Covid -19 Policy which provided for the inoculation of all employees returning to work after lockdown; employer disputes entitlement to compensation on basis of dismissal and the provision of employment benefits as those terms are used in section 11A(1); Northern NSW Local Health Service v Heggie and Department of Education & Training v Sinclair considered and applied; Held – the predominant cause of the worker’s injury was the respondent’s actions in respect of dismissal and that those actions were reasonable; award for employer.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

This is another case of psychological injury arising from an employer’s attempt to deal with the risk caused by COVID-19 on reopening of its business following the lockdowns required by various public health orders in 2021.
Matthew Ryan (the applicant) was formerly employed by Alto Pennant Hills Pty Limited (the respondent) as a customer retention manager.
In July or August 2021, the respondent ceased its face-to-face business activities and its employees, including the applicant, were required to work from home. The applicant was paid the amount stipulated by the Federal Government’s JobKeeper allowance in lieu of wages.
During this period, after consultation with staff, the respondent developed a COVID-19 vaccination policy which took effect from 15 November 2021 and which was emailed to employees under cover of an email from the respondent’s managing director, Anthony Altomonte, on 17 November 2021. Subject to exemptions, the policy provided that all employees of the respondent were to be fully vaccinated by 15 December 2021.
The applicant did not wish to be vaccinated against the COVID-19 virus. On 2 December 2021, he attended a general practitioner, Dr Mahalyana, who diagnosed anxiety and referred him to a psychologist. He was subsequently certified as unfit to work because of anxiety caused by “work-related stress.”
The applicant did not return to work with the respondent following certification of unfitness to work by his general practitioner. He made a claim for compensation. The scheme agent acting on behalf of the respondent’s insurer, Allianz, denied that it was obliged to pay the applicant compensation pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act). It accepted that the applicant sustained a psychological injury arising out of his employment but concluded that his rights to compensation were extinguished by the operation of s 11A (1) of the 1987 Act. The applicant’s employment was terminated by the respondent in May 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

By these proceedings, the applicant claims weekly compensation from 18 August 2021 to 27 September 2023. His application particularises pre-injury average weekly earnings (PIAWE) of $1,345.25 per week.
When the matter came on for conciliation and arbitration on 8 May 2024, Mr Dodd, of counsel, appeared for the applicant and Ms Goodman, of counsel, appeared for the respondent. I was informed that counsel who had been retained by the respondent had fallen ill and that Ms Goodman had been briefed on the morning of the hearing. It was accepted that the respondent was unable to present its case at the arbitration and conciliation hearing on that day. Accordingly, I vacated the date and stood the matter over to a conciliation conference and arbitration hearing on 6 June 2024. On that latter occasion, the matter was heard audio-visually.
During the conciliation conference, I was informed by counsel that the parties were unable to agree on the threshold issue of whether the applicant’s entitlement to compensation was defeated by s 11A (1) of the 1987 Act. I am satisfied that the parties, who were represented by experienced lawyers, had had ample opportunity at the preliminary conference and at the two conciliation conferences in the matter to resolve their dispute but had been unable to reach a mutually satisfactory settlement.
During the conciliation conference, Ms Goodman confirmed that the respondent disputed liability on the basis that actions of the respondent with respect to dismissal, or the provision of employment benefits to workers was the whole or predominant cause of the applicant’s acknowledged psychological injury. The only other issues raised by the respondent were the extent of the applicant’s incapacity and how any entitlement to compensation should be quantified by the Commission.

EVIDENCE

The documents before the Commission are as follows:
(a)    the Application to Resolve a Dispute (ARD) and the documents attached;
(b)    the Reply and the documents attached, and
(c)    Applications to Admit Late Documents dated 9 April 2024, 15 May 2024, and 3 June 2024.
There was no objection to the material referred to above. There was no application to adduce further written or oral evidence at the arbitration hearing.
Pursuant to my direction of 10 May 2024, the applicant lodged an amended Parts 4 and 5 of the Application. Relevantly, this described the applicant’s injury as an adjustment disorder with mixed anxiety and depressed mood. It alleged that the injury occurred:
“…as a result of events arising out of, or in the course of, employment concerning a direction to be vaccinated which commenced on 1/06/2021 until 14/12/2021 resulting in the respondent’s COVIC-19 Policy dated 15 September 2021.”
By the amended Part 5.1 the applicant claimed weekly compensation from 18 August 2021 to 13 May 2024.
Before addressing the submissions of the parties, it is convenient to record compendiously the evidence of the applicant, of the respondent’s site manager, Timothy Karjadi and its corporate counsel Ralph Fitzgerald, and the opinions of the qualified psychiatrist who saw the applicant on behalf of his solicitor and the respondent. What follows is not intended to be a comprehensive survey of this evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.

The applicant

The evidence contains an unsigned statement of the applicant dated 13 January 2022 which sets out some of the background to the development of his accepted psychological injury. After describing the nature of his work as a customer retention manager, the applicant continues:
“Things first became difficult for me at work in September 2021. The workshop closed down and the Government had closed the business down in August 2021. Everyone was told we would be working from home. We were asked what we would do to ensure we were still performing. From that point I got the COVID payment from the Government and was not receiving my base wage any more from the insured.”
The applicant says that in mid-September 2021, he received a telephone call from Mr Karjadi. His supervisor, who advised him that it was likely that vaccination would be a prerequisite for remaining employed in the business. Following that conversation, the applicant communicated with Mr Karjadi by email. He made clear that he objected to undergoing a COVID-19 vaccination.
The applicant says that following a meeting on 14 December 2021, with Mr Karjadi and Mr Fitzgerald he asked that all correspondence be “via email rather than over the phone as they were telling lies regarding what had happened”. He recounts that he was told that he could not return to his job as “they only wanted vaccinated staff in the showroom.”
The applicant states that:
“I was trying to get more information regarding my employer’s reason behind making vaccination mandatory when we were not frontline workers. The majority of my questions to them were ignored. That has added to the pressure for me, that there is not full transparency around the decision to require vaccination.
The response or lack of response from my employer meant I had no certainty around my employment. I had advised them of my family history with heart problems. My older brother had a heart attack two days after he was vaccinated. My father had blood clots in his lungs. Despite that I had been told I am not exempt from their COVID vaccination policy.”
The applicant says that he asked his doctor for an exemption on medical grounds, but she refused to provide it. He states that he is “very concerned that the vaccination will be dangerous to my health.”
On 26 November 2021, the applicant received an email from Mr Karjadi stating that if he was not vaccinated by 15 December 2021 he would be “in breach of my contract”.
The applicant says that management have “made me out to be an anti-vaxxer.” He says that he has had other required vaccines. He continues:
“The research shows there have been issues that have arisen in relation to people with heart problems and the vaccine, but my employer keeps saying it is my choice as to whether I am vaccinated.”
The applicant also recounts that he had asked for responses to his questions in writing. Contrary to his wishes, his employer insisted on a Zoom meeting on 14 December. He again requested that his emails be answered in writing and that the respondent answer his employer should respond to his enquiries about the vaccine. However, he says that he subsequently received an email from Mr Karjadi stating that “they would not answer my questions.”
The applicant states that he believes that management have not considered “the medical issues I have”:
“I believe they are forcing something on me which could kill me. My only choice is to be vaccinated or say goodbye to my career.”
There is a further statement of the applicant dated 21 November 2022 which addresses the reasonableness of the respondent’s proposed termination of his employment. The document could more readily be characterised as a submission rather than statement evidence. It includes the assertions that are common in these cases that rather than threatening to terminate his employment for non-compliance with the COVID-19 policy the employer should have considered whether he could work from home or be suspended on either reduced or full pay. Further, it asserts that the respondent could have “offered myself special leave for the
6-month period” or required him to perform “alternative work arrangements”.
Curiously, the statement continues:
“These events and the lack of my employer giving any consideration to how they could employ me after May 2022 has resulted in my anxiety and depression becoming chronic.”
The applicant also asserts that the respondent’s request denied his “fundamental right to work” and restricted his “basic liberties.”
The applicant then sets out the symptomatology that he has experienced since his cessation of employment. He continues:
“I have been incapacitated for work as a result of the events arising from my employer’s decision to terminate my employment due to being unvaccinated.”
He also alleges that the respondent failed to answer questions that he posed for them which may have “helped me to make a decision about taking the vaccine.” Rather, he says that he was ignored and ridiculed by his employer. He says his dismissal for “misconduct” has severely curtailed his ability to obtain other gainful employment.

Timothy Karjadi

By a signed statement of 18 January 2022, Mr Karjadi states that he first telephoned the applicant in respect of possible mandatory vaccinations in September 2021. He rang members of his staff to “let them know what we were thinking” in respect of a return to work. He continues:
“I advised the claimant that while I knew his personal opinion this was more of an FYI call. He tried to argue with me and present his point of view on vaccination. I advised him that my opinion was different, but I needed him to be aware of the company’s intended direction with mandatory vaccination. He told me he would not be getting vaccinated.”
Mr Karjadi acknowledges that the applicant did raise “his family medical history.” The applicant was told that if he could get a letter of exemption from his general practitioner (GP), we would accept that as an exemption from being vaccinated under the COVID-19 vaccination policy. He recounts that the claimant was the only member of staff who objected to the “vaccination mandate.”
Following the telephone and email correspondence, the applicant was asked to attend a Zoom meeting on 14 December 2021 with Mr Fitzgerald, the respondent’s general counsel, and Mr Karjadi’s manager, Praveen Devarajan. The meeting was to hear the applicant’s objections to the policy. He continues:
“Ralph Fitzgerald didn’t respond to the claimant’s medical questions. We are not qualified or in a position to answer those questions. We had asked the claimant to provide a doctor’s certificate to state his exemption but he has not provided that. He claimed his GP is corrupted by ‘the system’”.
Mr Karjadi states that prior to the introduction of the policy each member of staff received a survey seeking their views on mandatory vaccination. He states that he had not made any comment about the applicant being an anti-vaxxer. Rather, he states that the applicant “makes those comments himself to other staff and does not hide it.” He also states that:
“We need to have the COVID policy in place to keep our business open and to keep our staff and customers safe.”
By a supplementary statement, dated 20 September 2023, Mr Karjadi addressed a series of questions raised by the respondent’s insurer and legal advisers relating to the circumstances in which the applicant was told that his employment would be terminated if he did not undergo a vaccination and the circumstances surrounding the ultimate termination of his employment.

Ralph Fitzgerald

By a statement dated 25 January 2022 Mr Fitzgerald states that the respondent’s COVID vaccination policy required all staff to be fully vaccinated by 15 December 2021 unless they were able to provide a medical exemption. He states that Mr Karjadi informed him that the applicant was opposed to getting vaccinated and that he had seen email correspondence in which the applicant had “outlined his concerns about COVID vaccination.” He states a meeting was convened to hear the claimant’s view in respect of the policy and to understand his position.
During the meeting, the applicant informed the respondent’s representatives of his family medical history and advised that he was “scared that he might die if given the vaccine.” He also stated that as he was a healthy young man, he was unlikely to be seriously affected by COVID.
Mr Fitzgerald states that:
“We accepted the claimant’s concerns were genuinely held but advised him we did not agree with his analysis of the risks. We told the claimant that we would consider the information that he had provided when deciding how to deal with his case.
I advised the claimant that the insured had taken its advice on the COVID-19 vaccines from the Therapeutic Goods Administration and information from ATAGI and our Federal and State health departments when formulating our policy”.
The acronym ATAGI is a reference to the Australian Technical Advisory Group on Immunisation.
In response the applicant’s request for a written response to concerns that he had raised in his email to Mr Karjadi of 23 November 2023, Mr Fitzgerald states that while he believed they had covered most of the points during the meeting of 14 December 2024, the respondent would “consider providing a written response and get back to him”.
Mr Fitzgerald recorded that the applicant reiterated at the meeting that the situation was causing him anxiety, that he was under “financial strain,” and that he was “concerned about how he would pay his rent” in the future.
Following the meeting Mr Fitzgerald says he reviewed the questions raised by the applicant in his earlier emails and formed the view that no additional written response was necessary as the questions had been addressed during the meeting and the applicant was unlikely to accept “anything the insured put to him that was contrary to his current beliefs”.
In a supplementary statement of 5 December 2023, Mr Fitzgerald refers to the email chain between the applicant and Mr Karjadi. He states that during the meeting of 14 December 2021:
“We raised the possibility that Mr Ryan’s employment could be terminated if he refused to comply with the policy, and I asked on more than one occasion whether Mr Ryan wished to say that he wanted us to take into consideration before deciding on our response.”
Mr Fitzgerald states that during April 2022, he was absent for 3 weeks as he contracted COVID-19. On his return to work, he was informed that Allianz had denied liability to pay compensation to the applicant. Accordingly, a letter was sent to the applicant on 3 May 2022 terminating his employment.

Dr Ashwinder Anand

Dr Anand, psychiatrist, saw the applicant at the request of his solicitors on 3 July 2023 and provided a report. Dr Anand recorded that following the termination of his employment in May 2022, “he had been off work up until April 2023”. He recorded that the applicant had been applying for jobs “but they would ask for my vaccination status and then they would refuse to employ me.”
Dr Anand recorded that the applicant had seen a psychologist on four occasions after leaving the respondent and he was also treated with an antidepressant, but he ceased it because of the side-effects.
Dr Anand expressed the opinion that the applicant had Adjustment Disorder with Mixed Anxiety and depressed mood as a result of his experiences at the respondent. He expresses the opinion that the applicant:
“…felt discriminated, ostracised and under duress to receive the vaccination which was a mandatory requirement. This led to the termination of his employment with no support provided by his organisation.”
He thought that the applicant required further psychological treatment.
In respect of incapacity, Dr Anand noted that the applicant had been applying for jobs, but potential employers had refused to employ him because of his vaccination status. Ultimately, he was employed as a workshop assistant working 3 days a week. The doctor continued:
“In my opinion, Mr Ryan has the capacity to resume work in a graded fashion. He would benefit in my opinion to get back into an employment setting/some kind of work because that would offer a further degree of resilience, a degree of achievement, a degree of responsibility, a degree of being part of a wider community and being productive. I feel that would enable him to further improve in terms of his mental state and depression.”
He expressed the opinion that the applicant’s prognosis was “good.” He also stated that he did not anticipate that there would be any restriction in respect of the applicant’s employment “in the reasonably foreseeable future.”

Dr Nabil Malik

Dr Malik, a psychiatrist, saw the applicant at the request of the respondent’s insurer on 23 February 2022 and provided a report of that date. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought the:
“…whole or predominant cause of Mr Ryan’s psychological injury was him not wanting to be vaccinated against COVID-19 which was clashing against the policy.”
Dr Malik carried out a mental state examination, which included an observation that the applicant was anxious when talking about the vaccination. He did not address the issue of the applicant’s capacity for work.

SUBMISSIONS

The submissions of the parties are recorded, and I do not propose to reiterate each of their submissions in these short reasons. Both parties addressed at length on the issue of reasonableness of the respondent’s actions. Little was said as to whether the actions that resulted in the applicant’s accepted psychological injury were with respect to the provision of employment benefits or dismissal.

Ms Goodman referred me to the decision of Member Isaksen in Lancaster v City of Sydney Council[1] in which he held that being able to work while unvaccinated, contrary to an employer’s policy, constituted an employment benefit. Otherwise, Ms Goodman provided an exhaustive analysis of the circumstances by which the respondent developed its COVID-19 policy, informed the applicant of it, and reached a decision to terminate the applicant’s employment. The object of the analysis was to establish that the respondent’s actions were reasonable both in form and in substance.
[1] [2022] NSWPIC 484 (30 June 2022) (Lancaster).
In respect of capacity and the quantification of any entitlement that the applicant might have to weekly compensation, Ms Goodman submitted that the sums recorded in the applicant’s wages schedule or in his payslips did not accord with figures in his bank statements. She referred to the receipt of unemployment benefits as some evidence that the applicant was fit for some work rather than totally incapacitated and to the evidence that he had been “seeking work” from an early time.
Mr Dodd acknowledged that the question of reasonableness involved an evaluation of the rights and obligations of both employer and employee. Given the respondent’s acceptance of the applicant’s concerns about his health as genuine it ought to have gone about its task of implementing a COVID-19 policy in a different way. The way in which it dealt with the applicant was not reasonable. An employer could not discharge its onus of proof in respect of s 11A (1) merely by demonstrating that its actions complied with its policy: Rail Corporation NSW v Aravanopules.[2] In accordance with the reasoning of Truss J in Ivanisevic v Laudet Pty Limited,[3] it was necessary to have regard not only to the end result but to the manner in which it was effected.
[2] [2019] NSWWCCPD 65 (17 December 2019).
[3] Unreported, 24 November 1998.
At the conclusion of his submission, I asked Mr Dodd whether he wished to address the reasoning of Member Isaksen in Lancaster. It is not clear from his submission whether he accepted that the right to work without being vaccinated constituted an employment benefit.

The Covid-19 Policy

The respondents Covid-19 Policy was as follows:
“24 v1.1
Alto Group Policy Manual
C.1 COVID-19 Vaccination Policy
Effective: 15 November 2021
1.     PURPOSE
1.1.     Alto Group is committed to providing a safe and healthy work environment for all workplace participants, in accordance with its duty under Workplace Health and Safety laws to eliminate or minimise, so far as is reasonably practicable, risks to health and safety. Exposure to the COVID-19 virus has been identified by Alto Group as such a risk.
1.2.     Alto Group's workplaces are predominantly customer facing and are centred around our sales and service operations where direct contact with our customers occurs. This presents an increased risk of exposure to the COVID 19 virus. This risk extends to the vast majority of our staff. As well as an increased risk of exposure to the virus there is also increased risk to the business should there be any close contact at a workplace. Due to the potentially drastic consequences of exposure to the virus, both for our employees and the business, we have rated this risk as significant.
1.3.     COVID-19 vaccinations have been rolled out by Australian federal and state governments as a proven and effective way to significantly reduce the rate of COVID-19 infections in the community and the severity of infection. Recent studies have shown that those fully vaccinated against COVID-19 are 16 times less likely to become infected by the virus and, if they do become infected, the severity of the infection is greatly reduced, and they are much less contagious than unvaccinated people who have the virus.
1.4.     COVID-19 vaccinations have been rolled out by Australian federal and state governments as a proven and effective way to significantly reduce the rate of COVID-19 infections in the community and the severity of infection. Recent studies have shown that those fully vaccinated against COVID-19 are 16 times less likely to become infected by the virus and, if they do become infected, the severity of the infection is greatly reduced, and they are much less contagious than unvaccinated people who have the virus.
1.5.     Alto Group has consulted with our workers, surveying their views on vaccinations. A significant majority (76%) believe that all workplace participants should be fully vaccinated.
2.     POLICY
2.1.     Alto Group's policy is that all employees at Alto Group workplaces are to be fully vaccinated by 15th December 2021.
Fully vaccinated means:
·You have had 2 doses of an approved COVID-19 vaccine where 2 doses are the complete course, or
·You have had 1dose of an approved COVID-19vaccine where a single dose is the complete course, or
·You have a medical exemption.
Approved COVID-19 vaccine means a vaccine approved by the Australian Technical Advisory Group on Immunisation (ATAGI).
Medical exemption means either:
·A valid medical contraindication certificate, or
·A medical clearance form
all as defined by NSW Health.
3.     EXEMPTIONS
3.1.     Should any employee consider that they have reasonable grounds for exemption from this policy, they should immediately advise their manager in writing, detailing their reasons for exemption. Each application for exemption will be considered on its merits on a case-by-case basis.
4.     GENERAL
4.1.     This policy is in addition to and not in replacement of Alto Group's existing COVID Safe policies and procedures. Alto Group maintains the importance of these policies which include physical distancing, good hygiene and regular cleaning.”

Applicant’s email of 23 November

The applicant’s email if 23 November, one week after the issue of the policy, provides some insight into the difficulties he perceived at that time.
“Timothy Karjadi
From:       Matt Ryan <[email protected]>
Sent:        Tuesday, 23 November 2021:723PM
To:           Timothy Karjadi
Subject: Re:        Alto Group Policy
Attachments:       image001.png; image002.jpg
Hi Tim,
Re Experimental Covid 91 Injection policy
Thank you for telling me that you have mandated the new COVID experimental injection and that you consider this mandatory for my employment. It i s quite disheartening to hear that the Alto Group has chosen to go down this path, one that gives little regard for an individuals right to choose without consequences such as the threat of losing their job also, considering there is readily available Vaccine adverse event reporting done through government websites such as and listing some pretty serious side effects, including death, Ima wondering where Alto Groups 'Duty of Care' towards their employees has gone with their requirement to implement this 'mandatory' policy?
Would you please advise me in writing by return the legal basis on which you consider that you can mandate this experimental injection? Please do not refer me to some policy you have created but to actual law that you can mandate that someone can be forced into an experiment without their ability to say NO, without threat of losing their employment.
I raise the following points for you to consider
1. This injection is entirely experimental (it only has provisional approval at this stage) and the trials will go through to 2023. So you would be forcing me to be injected as part of a massive experiment, where not even the makers of this injection know het proper side effects people will suffer.
2. The makers of this injection cannot guarantee it will stop you from getting Covid19 or more importantly passing it on to others. Worldwide, people who have been injected are now still testing positive for the virus and many have died within days or weeks of having the injection, I can point you towards many government websites that list thousands of possible life threatening side effects.
3. 99.9% of people under 65 survive the Covid 19 virus. The vulnerable age group is 80+ years. It is not a killer virus. This injection is not saving lives because most people survive on their own.
4. The injection has not been properly safety tested. Not enough testing has been done on people with comorbidities, pregnant women or the elderly and yet it being injected into them with disastrous consequences. It has been rushed to market in7months as opposed to 7-10 years being the usual testing time.
5. The "pandemic" has been declared based on flawed testing as the PC test was never designed to "diagnose" any illness, as it cannot detect a live infection.
6. At the time I signed my contract of employment there was never consent on my part to be in an experiment or be mandated to have any form of injection or Vaccine at some time after my contract had been signed. Without my consent this introduces a new term in the contract, which I never agreed to.
7. As the Injection makers have no liability whatsoever for any damage they cause, what indemnity or guarantee do you offer to compensate my family or me in the event I am damaged or die? With a rapidly growing database of over a million reports of injuries including Anaphylaxis, thrombosis and coagulation disorders, heart problems such as Myocarditis and Pericarditis, Neurological damage, strokes, paralyses, and convulsions and well over a hundred thousand deaths worldwide, why does Alto Group want to expose their employees to such risks?
8. The Vaccines are ineffective - evaluation of Clinical trial risk reduction reveals the true effectiveness of the vaccine to be negligible (~1%), and the vaccines do not prevent or reduce viral transmission. This is evident in the Governments new push for people to need boosters, in fact the health department have purchased over 150 million booster doses, which is 5 or 6 times the amount for Australia's population, pointing to the possibility they will be non stop pushing people to constantly get boosters. The vaccines therefore fail to meet the basic performance criteria required of vaccines and are incapable of managing the spread of Covid-19.
9. Your policy clearly violates a number of human rights, especially the right to say 'no' without coercion to being part of an experiment. Numerous laws, regulations and policies protect the right of informed consent in receiving a vaccine or any medical procedure, including
·The Commonwealth Constitution which prohibits civil conscription in medical and dental services (5.51(23A)).
·The Biosecurity Act 2015 (Cth) which prohibits vaccination or treatment without meeting the stringent requirements of an individual Human Biosecurity Control Order (s.92), and prohibits the use of force for vaccination (s.95).
·The UNESCO Statement on Bioethics and Human Rights, which states "Any preventative diagnostic and therapeutic medical intervention is only to be carried out with the prior free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason, without disadvantage and without prejudice" (Art.6).
·The Criminal Code Act 1995 (Cth), which relates to interfering with political liberty states "Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person of any political right or duty shall be guilty of an offence" (s.83.4).
·The official Australian Immunisation Handbook, which states that for consent to be legally valid, "It must be given voluntarily in the absence of undue pressure, coercion or manipulation." (s.2.1.3). The Nuremberg Code, which states "The voluntary consent of the human subject is absolutely essential" (Art.1).
I look forward to receiving your response in regards to the points above, as it currently stands, without being able to have answers to the above, I currently feel I am being pressured into taking the experimental vaccination due to the implementation of this Alto Group policy, and I am entitled in law and conscience to decline a COVID-19 vaccination at this point in time.
Thanks Tim.”

Discussion and findings

The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan[4] the Court of Appeal referred to earlier decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous. In Irwin v Director-General of School Education[5] Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
[4] [2003] NSWCA (24 September 2003).
[5] (Unreported, 18 June 1998).
Then, in Ivanisevic v Laudet Pty Ltd[6] Truss J, stated: “In my view when considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[6] (Unreported, 24 November 1998).
The judgment in Northern NSW Local Health Service v Heggie[7] casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd.[8] I see no reason this is not such a case.
[7] [2013] NSWCA 255.
[8] [2001] NSWCC 167 (10 September 2001).
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions with respect to the matters enumerated in s 11A (1) to be flawless.
Of course, for an employer to succeed it must first prove that that the worker’s psychological injury was wholly or predominantly caused by its actions with respect to those matters; in this case the provision of employment benefits and dismissal. As the many cases on this issue establish that can be difficult to prove as psychological injuries often have complex causes. The presidential unit of the Commission has held that predominant cause means the main cause, although it is arguable that the word in the context of the section should be read as meaning “chief.”
While the parties addressed on the issue of reasonableness little was said about the provision of employment benefits and nothing about dismissal. Rather the submissions of the parties concentrated on the issue of reasonableness. At the arbitration hearing, I assumed that the only significant issue that I was required to address was the reasonableness of the respondent’s actions. However, after commencing these reasons, I was not certain that my initial impression was accurate. In those circumstances, I first address the question of whether the predominant cause of the injury was the respondent’s actions with respect to the matters raised by it at the arbitration hearing.
In Lancaster to which the respondent referred, Member Isaksen stated that being able to continue to work by way of exemption from a Covid-19 policy as an “employment benefit”. In that case the applicant had been granted a medical exemption based on a certificate issued by his doctor. After referring to a dictionary definition of the words the member said:
“The applicant is being given the benefit of an exemption to a policy instituted by the respondent that all employees are to be fully vaccinated against the Covid 19 virus”.
I have only been able to find one previous decision of the Commission dealing with “employment benefits.” In Reedy v IBM Australia Ltd[9] Arbitrator Beilby held that working from home “on flexible hours” laws fell within the phrase. I doubt that it could now be denied that remote working opportunities might be characterised as an employment benefit.
[9] [2014] NSW WCC 303 (29 August 2014).
The applicant saw a GP, Dr Mahaliyana, on 2 December 2021. He gave a history of feeling anxious for two months. The doctors note continued:
“Work-related stress
Works as a used car salesman for Audi [sic]
Under a lot of pressure from work
He was asked to take Covid 19 vaccination but he refused
if he does not have vaccination he is going to lose his job
he does not want to have vaccination
it causes anxiety
advised vaccination is given to prevent COVID which is a deadly disease.”
The doctor diagnosed anxiety and referred the applicant to a psychologist, Mr Ebert. In his letter of referral, the doctor notes that he had advised the applicant to have the injection.”
The medical history recorded above is consistent with the fact that the applicant was first told by Mr Karjadi that the vaccinations would likely become mandatory if workers were to remain employed in the business in mid-September the 2021. From November 2021, he was unable to work, as the respondent only wanted vaccinated staff in the show room. This may have followed from the implementation of the regime set out in Mr Altomonte’s email of 7 October 2021 regarding reopening.
The Covid-19 Policy dated 15 November 2021 provided for all employees of the respondent to be fully vaccinated by 15 December 2021. The applicant’s response to the policy can be found in his email that 28 November 2021. He wished to be informed of the legal basis of the policy. He described the vaccine as experimental and ineffective. He submitted that the pandemic had been declared on the basis of “flawed testing” and the policy violated both international and Commonwealth law. The applicant stated:
“I look forward to receiving your response in regard to the points above, as it currently stands, without being able to have answers to the above, I currently feel I am being pressured into taking the experimental vaccination due to the due to the implementation of this Alto Group policy, and I am entitled in law and in conscience to decline Covid 19 vaccination at this point in time”
Was the development of the applicant’s psychiatric injury in the circumstances set out above predominantly caused by actions taken by the respondent with respect to “dismissal” or the provision of “employment benefits.” The applicant was not finally terminated until 3 May 2022. However, the threat of dismissal if he did not have a Covid injection existed from mid mid-September 2021. It had become a near certainty by the time the applicant saw his general practitioner on 2 December 2021 and told him that if he did not have the injection, he was going to lose his job.
I infer the applicant was willing to continue working for the respondent in his usual job or in some suitable employment consistent with his nonvaccinated status. However, the respondent had determined that the likely option, if he did not have the vaccination, was dismissal. In the words of the applicant, his “only choice is, to be vaccinated or say goodbye to my career.” In my opinion, the threat of dismissal is the predominant cause of the applicant’s psychiatric injury. Without it the respondent’s Covid response and the policy 15 November 2015 is unlikely to have engendered a psychological injury.
In the report of Dr Anand, the following question and answer appears:
“In your opinion, has our client's psychological condition been wholly or predominantly caused by action taken or proposed to be taken by the employer in respect of:
a. Discipline
b. Dismissal
Mr Ryan was terminated from his employment in late 2021 due to his failure to comply with COVID vaccination mandate as issued by NSW Government.”

While the answer is not entirely clear, it probably reflects the doctor’s view that dismissal was a predominant cause of the applicant’s psychological injury. Accordingly, I find that the respondent’s actions in respect of dismissal were the predominant cause of his psychiatric injury.
Conversely, I am not persuaded that the respondent’s actions with respect to the provision of employment benefits are a cause of the applicant’s injury in the circumstances of this case. The facts are distinguishable from those in Lancaster. The applicant was content to return to his usual work, or any alternative work, for the respondent, provided he was not vaccinated. It is difficult to see how refusing to so employ him constitutes action by the respondent with respect to employment benefits. On the contrary, it has a distinct detrimental flavour.

Reasonableness

It is necessary for the respondent to prove that its actions or proposed actions which caused the applicant’s injury were reasonable. The pleadings allege the injury was caused by the respondent’s actions between 1 June 2021 and14 December 2021. The last date corresponds with the applicant’s initial State Insurance Regulatory Authority (SIRA) medical certification that he was incapacitated as a result of psychiatric injury. It is the respondent’s actions with respect to dismissal during this period which must be reasonable if the respondent is to succeed on its defence under s 11 A (1).
It follows that the events which occurred in 2022, including the delay in finally terminating the applicant’s employment, are not relevant to the determination of the issue of reasonableness. They did not materially contribute to the injury. Mr Dodd argued that by the date of the applicant’s dismissal, the threat of Covid had diminished and the regime of mandatory vaccination imposed by employers was coming to an end. But this also occurred after the applicant sustained his psychiatric injury.
The applicant relied primarily on the respondent’s failure to grant an exemption from vaccination in circumstances where it accepted that the applicant had a genuine belief that it had harmed members of his immediate family and may be harmful to him. As the policy clearly permitted an exemption to be granted, these facts necessitated that it be granted to the applicant.
Mr Dodd also referred to Commonwealth publications which recorded the side effects and the contraindications of the various Covid 19 vaccinations. Thus, the respondent ought to have known that the applicant was more at risk than other individuals.
I doubt that these arguments are persuasive. The applicant’s general practitioner, who was presumably familiar with his medical history, not only refused to provide the applicant with an exemption but advised him to have the vaccination. While the applicant believed that members of his family were adversely affected by Covid vaccinations there was no medical evidence to support a causal connection between their illness and the vaccination tendered in the applicant’s case.
At the meeting of 14 December 2024, Mr Fitzgerald asked the applicant whether he had discussed the matter is a family history which he had raised with his doctor. According to the notes of the meeting made by Mr Fitzgerald, the applicant responded to doctors were untrustworthy and had been directed by the Australian Medical Association (AMA) not to certify exemptions from the vaccination. The respondent took the view that while the applicant was genuine these were medical issues that it should not address.
This evidence does not detract from a finding that the respondent was acting reasonably in dealing with the applicant’s application for an exemption. Whether the applicant’s mental or physical health made vaccination inappropriate was in part a matter for a medical practitioner.
By his statement of 21 November 2022, the applicant suggests that reasonable alternatives to dismissal were suspension or working from home. At several points in the evidence, however, the respondent stated that its business, and the applicant’s job, were primarily “customer facing.” It is referred to in the Covid-19 policy document. Mr Karjadi stated that the applicant could not perform his role while unvaccinated. It is not evident that there was useful work that the applicant could perform from home. In my opinion it was not unreasonable to propose dismissal in these circumstances.
In his statement evidence, the applicant also criticises the process by which the respondent informed him of its decision. His emails requested that it address his concerns with the legality of the measure and address what he believed was compelling evidence that the vaccine was dangerous and ineffective. The respondent referred to advice it had taken from ATAGI and the Department of Health that the vaccine was safe and effective. The parties had radically different views of how to proceed. I doubt that the respondent could reasonably be expected to do more than it did in this case to explain its actions to the applicant.
In this case, the respondent had developed its Covid-19 policy after surveying its staff, and consulting with various state and federal health agencies. The policy itself was not impugned. Rather, the manner of its implementation was said to be unreasonable. It is necessary, however, to consider the process as a whole. In the oft quoted passage from Departmentof Education & Training v Sinclair,[10] Spigelman CJ at [97] said this:
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation “reasonable action with respect to discipline.” In my opinion, a course of conduct may still be ‘reasonable action,’ even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’.
[10] [2005] NSWCA 465 (20 December 2005).

83. While the respondent’s actions had serious consequences for the applicant they must be weighed against its obligation to its workforce and customers and its undoubted desire to return to profitability after the covid lockdown.

Adopting this approach, the respondent’s proposed actions with respect to dismissal were reasonable. I make an award for the respondent.

[2024] NSWPIC 352

2 July 2024