Secretary, Department of Education v Uzunovska - [2024] NSWPICPD 19

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secretary, Department of Education v Uzunovska [2024] NSWPICPD 19
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Diane Uzunovska
INSURER:	Allianz - As Agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-W6459/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	4 April 2024
ORDERS MADE ON APPEAL:	1. Order 1 of the Certificate of Determination dated 17 February 2023 is amended to read as follows: “The applicant sustained psychological injury on 13 October 2021 arising out of or in the course of her employment with the respondent from 27 August 2021 to that date.” 2. The Certificate of Determination dated 17 February 2023 is otherwise confirmed.
CATCHWORDS:	WORKERS COMPENSATION – psychological injury – COVID-19 vaccine mandate – whether employment, or the NSW Government’s Public Health Order was causative of injury – whether email communications regarding the COVID-19 vaccine mandate constitute disciplinary action to establish a defence under section 11A of the Workers Compensation Act 1987 –psychological injury held not to be wholly or predominantly caused by reasonable action taken by the employer in respect of discipline or dismissal under section 11A of the Workers Compensation Act 1987
HEARING:	On the papers
REPRESENTATION:	Appellant:
Dr S Blount, counsel
Hall & Wilcox
Respondent:
Mr G Horan, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Uzunovska v Secretary, Department of Education [2023] NSWPIC 64
MEMBER:	Mr C Wood
DATE OF MEMBER’S DECISION:	17 February 2023

INTRODUCTION

This is another application involving the Secretary, Department of Education (the appellant) and how it administered the COVID-19 vaccination mandate that was announced by the Government of New South Wales in 2021. By an email communication to all teachers and ancillary staff on 27 August 2021, the appellant provided information about how the Public Health Order, which mandated that all employees in public schools had to be double vaccinated by 8 November 2021, would be approached by the appellant.
I would remark that this case, in common with other similar cases involving the appellant, does not question the lawfulness or reasonableness of the COVID-19 vaccine mandate itself, rather the case is about how the mandate was implemented by the appellant and the impact this had on employees of the appellant. In this case, the employee is Ms Diane Uzunovska (the respondent), a teacher who had been employed by the appellant for 17 years. She worked at Carlton Public School. During the COVID-19 pandemic, she refused to comply with the directive to undergo the vaccination and developed a psychological injury from the implementation of this requirement.[1] In proceedings before the Personal Injury Commission (the Commission), Member Christopher Wood determined that Ms Uzunovska had sustained a psychological injury arising out of, or in the course of employment to which employment was a substantial contributing factor. There was no defence available to the appellant, as it failed to prove that the psychological injury was wholly or predominantly caused by reasonable disciplinary action under s 11A of the Workers Compensation Act 1987 (the 1987 Act).
[1] Respondent’s statement, Application to Resolve a Dispute (ARD) p 1. The reasons for the refusal to comply with the mandate are not provided in detail, other than it being contrary to her “personal values”.
In this appeal, the appellant alleges a number of errors in the Member’s finding in respect of injury, and s 11A of the 1987 Act.

BACKGROUND

In the days after the initial email correspondence from the Department Secretary on 27 August 2021 regarding the requirement of school based staff to receive the vaccination, on 30 August 2021, the respondent consulted her general practitioners, Dr Yang and Dr Shahad for distress and anxiety around receiving the vaccination.[2] Thereafter, she received regular treatment from various doctors at the same general practice for her mental health, who recorded fear and panic attacks arising from the requirement to receive the vaccination, flaring up as she received continuing correspondence from the appellant regarding the mandate and the impact this might have on her employment.[3] This correspondence, again, was sent to all school based staff, including a ‘vaccination update’ on 2 September 2021 from the appellant’s Chief People Officer confirming the requirement to receive two doses of the COVID-19 vaccination by 8 November, and reminding staff to be respectful of others with different personal circumstances.[4] The respondent says that in addition to the correspondence which made her feel pressured and gave rise to her anxiety, there were interactions with colleagues where she felt stigmatised and ostracised for her choice, including an occasion where a staff member said during a meeting “these anti-vaxxers are keeping me at home on the couch and are the reason I can’t go out and socialise”.[5] The dates of these interactions are not specified in the respondent’s statement.
[2] Clinical records of Dr Yang and Dr Sahade of 30 August 2021, ARD, pp 54–55.
[3] Clinical records of Bondi Junction 7 Day Medical Centre, including consultations with Dr Yang and Dr Sahade, ARD, pp 47–55.
[4] Reply to Application to Resolve a Dispute (reply), pp 7–10.
[5] Respondent’s statement, ARD, pp 1–2.
The “Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021” was issued on 23 September 2021, requiring certain education and care workers to be vaccinated against COVID-19. The appellant’s website information surrounding the vaccination requirements are supplied in the Reply to ARD, commencing at p 11, as at 24 September 2021. This webpage outlined the timeline for vaccination, the evidence required of vaccination, and an FAQ section addressing circumstances schools may encounter, stating that the appellant would “take appropriate action, which can include termination of employment” if a staff member was to refuse vaccination without a medical exemption.
According to a statement dated 31 May 2022 of Dr Paul Wood, Executive Director, Educational Standards, the appellant then introduced COVID-19 vaccination guidelines on 5 October 2021.[6] These guidelines noted that mandatory vaccination was a key strategy to provide a safe working and learning environment, and provided detail as to evidentiary requirements, medical contraindications and exemptions and non-compliance. In particular, they stipulated that unvaccinated staff were not permitted on site and if in breach of the guidelines, “then investigation and disciplinary action may be undertaken by the department, including termination of employment” .[7]
[6] Reply, p 64. A copy of the COVID-19 Vaccination Guidelines is attached at reply, p 22 and again at reply, p 90.
[7] Reply, p 31.
Shortly before the respondent ceased work on 13 October 2021, she saw a general practitioner, Dr Romeo, reporting that she was “panicky, feeling anxious after receiving many emails from work to get COVID-19 vaccination, felt harassed, palpitations, felt traumatized, poor sleep, early morning awakening, depressed mood, irrational fears”.[8] She lodged a workers compensation claim for a psychological injury accompanied by a certificate of capacity which attributed her injury to pressure at work regarding the COVID-19 vaccine. At this time, an incident report form was completed recording that the respondent was affected by the need to be vaccinated to keep her job, had felt bullied and harassed due to this, and had developed depression and anxiety. It is not apparent who was the author of the document as it appears to be something completed online.[9] After submitting her certificate of capacity, she recalls the school Principal advising her that he could not authorise a month off work, and attempting to negotiate her taking three weeks instead. She was then phoned by the Health & Well-Being advisor, Ms Joudo, who stated the requested change in her certificate was due to her being unvaccinated. The respondent said this left her feeling mistreated and degraded.[10]
[8] ARD, p 32.
[9] Reply, p 1.
[10] Respondent’s statement, ARD, p 2.
After this, on 18 October 2021, the Department Secretary issued a determination under the Teaching Service Act 1980 establishing a condition of employment that all employees receive two doses of the vaccination.
Pausing here, I remark that as noted by the Member at reasons [29], it is unclear whether the documents I have referred to above (save for the emails addressed to all teaching staff) had been supplied to or reviewed by the respondent at the time of issuing. The Member noted that much of the material appeared “on its face, to be directed to people in a Departmental managerial role, including guidelines for record keeping." There is no direct correspondence between the respondent and the appellant in evidence, nor does the statement of Dr Wood provide any specific evidence of dealings with the respondent. It merely provides a timeline of actions taken by the appellant in respect of communicating vaccination requirements to all staff, including that on 12 November 2021, (after the date of injury) the appellant introduced a policy governing “Management of Conduct related to non-compliance with COVID-19 vaccination requirements”. Dr Wood states that “each matter was reviewed and handled individually based on [unvaccinated employees’] circumstances” by the appellant’s Professional Ethical Standards Directorate.[11]
[11] ARD, p 68.
The respondent’s workers compensation claim was subsequently denied by the appellant’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 21 October 2021, on the basis that her injury did not arise out of or in the course of employment, and that employment was not a substantial contributing factor to her injury (ss 4 and 9A of the 1987 Act).[12] It was argued that the cause of her injury was not employment, but rather the “actions of the NSW Government generally and personal concerns regarding the COVID-10 vaccine”.
[12] ARD, pp 5–10.
The insurer referred to the TeachingServices Act 1980 and the Education Teaching Service Regulation 2001 as legislative instruments highlighting that the protection of children is paramount when taking action in respect of an employee, and “on this basis the Department has a responsibility to ensure children are protected from contracting COVID-19. Teachers are also required to comply with any lawful direction given by the Department, which extends to the direction given by the NSW Government in relation to mandatory vaccinations. We therefore consider the Department’s actions in issuing and enforcing the directive to be reasonable in the circumstances. We also note that the Department of Education have provided support to staff in implementing the COVID-19 vaccine mandate through regular email and online communications.”
Thereafter, the respondent came under the care of Dr Michael Hong, consultant psychiatrist, who in a report of 6 December 2021 recorded her description of “increasing distress and anxiety and depressive symptoms, in the context of COVID vaccine mandate and various emails with threats of termination of employment and disciplinary action, as she is not vaccinated”. She was diagnosed with panic attacks with adjustment disorder.[13]
[13] ARD, p 24.
For reasons not ventilated in these proceedings, the respondent was terminated from her employment with the appellant in January 2022, following disciplinary action. Another report of Dr Hong, dated 4 April 2022, provides the same history but adds that her termination was due to “alleged misconduct”. [14] To be clear, this aspect of disciplinary action and termination were not subject of the claim made by the respondent, nor the defence pursuant to s 11A as purported by the appellant.
[14] ARD, p 27.
Some months later, Dr Richa Rastogi, consultant psychiatrist, independently medically examined the respondent at the request of her solicitors, and provided a report dated 24 August 2022.[15] Dr Rastogi describes that the respondent did not “feel comfortable” with the demands of the vaccine mandate after it was issued in August 2021, and repeated most of the history reported in the respondent’s statement. The respondent advised Dr Rastogi that her initial certificate of capacity was not accepted by the school principal who requested that her period of leave reduce from 4 weeks to 3, she was told by the school’s health & wellbeing advisor this was because she was unvaccinated. She said she felt coerced and intimidated, isolated, unsupported and discriminated against. The doctor referred to the other instances of bullying and harassment, including interactions with colleagues. Dr Rastogi diagnosed panic adjustment disorder with anxious distress and panic attacks as a result, which has required intensive treatment. Employment with the appellant was the main contributing factor.
[15] ARD, p 30.
A request for review of the insurer’s dispute notice under s 287A of the 1998 Act was made on 1 September 2022, enclosing Dr Rastogi’s report and the respondent’s statement, accompanied with submissions as to why the decision ought to be overturned.[16] The insurer maintained its dispute in a review decision on 15 September 2022.[17]
[16] ARD, p 11.
[17] ARD, p 13.
Proceedings were thus commenced in the Commission and the matter proceeded to conciliation/arbitration on 17 January 2023. The matter could not be resolved as the appellant maintained its s 11A defence. The Member commented that this approach from the appellant was “not without significance”, acknowledging that several similar cases in which the Department of Education was a party had been appealed to a Presidential Member.[18] The Member observed:
“It is obviously appropriate that each matter be approached on its own facts but it was clear that the [appellant] holds a strong view s 11A(1) ought prevail to preclude payments of workers compensation to teachers who following the [appellant’s] communication of the Public Health Order remained unvaccinated and may have developed a psychological condition as a consequence of the events from August 2021.”[19]
[18] Dawking v Secretary, Department of Education [2022] NSWPIC 611, and Davis v Secretary, Department of Education [2022] NSWPIC 755.
[19] Uzunovska v Secretary, Department of Education [2023] NSWPIC 64 (reasons), [12].
The questions before the Member were whether the respondent sustained an injury within the remit of ss 4 and 9A, or whether injury was caused by the government implemented mandate as a separate factor. If so, this left the question of whether there was a defence available to the appellant under s 11A of the 1987 Act on the basis that the communications from the appellant consituted action either being taken, or proposed to be taken, in respect of discipline or termination. The Member determined the matter in favour of the respondent, and in a Certificate of Determination dated 17 February 2023, held that the respondent had sustained a psychological injury to which employment was the main contributing factor. The Member was not satisfied that the claim could be defended under s 11A of the 1987 Act, and thus ordered the payment of weekly compensation and medical or related treatment expenses.

THE MEMBER’S REASONS

The Member considered, in some detail, the evidence I have described as to the history of the respondent’s psychological injury following the first email of 27 August 2021.[20] The Member referred to the respondent’s statement, clinical records, the reports of Dr Hong and Dr Rastogi, the latter of which the appellant’s counsel advised the Member to take a cautionary approach to, due to the history recorded bearing similarity to the respondent’s statement which it submitted, called into question reliability. The appellant said it was unclear what other evidence was relied on by the doctor, there being no reference to treating practitioners’ notes. It was submitted that the contemporaneous medical records of the treating doctors, and the emails received by the respondent (which she described as harassing behaviour) were indicative of her psychological injury being wholly and predominantly caused by disciplinary action. It was argued that this correspondence to the respondent, specifically the email of 27 August 2021, was in effect taking action or foreshadowing action to be taken in connection with discipline or termination. The appellant submitted that it was logical that the respondent felt depressed as a result of the emails and unless she “wanted to throw her job away”, she would not have taken leave from 13 October 2021. The appellant also raised the question of potential pre-existing psychological issues.[21]
[20] Reasons, [18]–[63].
[21] Reasons, [82]–[89].
The respondent submitted that the injuries described in the various treating practitioners’ notes arose out of the emails and interactions within the workplace, which clearly occurred in the context of employment, satisfying employment as a contributing factor. In terms of s 11A, the respondent submitted that the emails received in August and September 2021 could not be regarded as disciplinary or termination action. In particular, there was nothing in the email of 27 August 2021 in respect of discipline or termination, rather it was a generic email to staff advising of the likelihood of the Government making a Public Health Order. The respondent said that the subsequent email on 24 September 2021 was simply encouragement to be vaccinated and information regarding the mandate; it did not constitute action with respect to discipline or termination for a failure to be vaccinated. Although the respondent feared losing her job, this did not satisfy the action being taken in respect of discipline. The evidence of the respondent and Dr Rastogi also referred to various factors as causative, while the appellant did not provide expert medical evidence to discharge its onus. Whilst it was acknowledged that disciplinary action took place in the lead up to her termination eventual termination in January 2022, this was after sustaining her work injury on 13 October 2021.[22]
[22] Reasons, [92]–[102].
At the outset of making his findings as to injury and s 11A, the Member observed that the appellant did not submit any medical evidence to support its position and rather sought to draw inferences upon material relied upon by the respondent. Nor did the appellant call any evidence from anyone other than Dr Wood, such as the principal, assistant principal or department staff to test the respondent’s credit as to the nature of events she referred to.
As to the issue of injury, the Member was satisfied on the evidence of the respondent’s treating practitioners that the email of 27 August 2021 impacted her psychologically, and this worsened as a result of further communications and incidents in the workplace (uncontested by the appellant), leading to her ceasing work (satisfying s 4). Even if there were any pre-existing anxiety issues, employment between 27 August 2021 to 13 October 2021 was, at the very least, a substantial contributing factor to her condition (s 9A).
On the question of whether a defence was available pursuant to s 11A of the 1987 Act, the Member rejected the appellant’s submission that the emails were clearly action taken with respect to discipline or termination because the respondent herself considered her employment to be in jeopardy. The respondent’s feelings in this regard did not establish that the appellant intended to undertake action with respect to termination or discipline, particularly in the absence of evidence to support this proposition. The Member considered the email of 5 October 2021 which set out that disciplinary action “may” be a consequence of failure to comply with the Public Health Order, but found that use of the word “may” indicated that at best, the appellant was expressing a possibility. If the appellant wanted to, it could have spelt out the possible consequences much sooner than this. Dr Wood’s statement did nothing other than set out the processes the appellant undertook. The Member considered that the other communications were generic, and “supportive if not pastoral in their tone”, reflecting the appellant’s honest desire to provide a safe workplace. Any formal disciplinary process, evidence of which was not submitted during proceedings but alluded to during submissions, took place in late October or November, after the date of injury. Even if the Member was wrong on this conclusion as to discipline, he was not satisfied the communications referred to were the predominant cause of injury, in the absence of evidence to negate the respondent’s allegation of other workplace events in which she felt bullied and belittled, which were not actions with respect to discipline or termination.[23]
[23] Reasons, [112]–[124].

As the Member held that the action causative of injury was not disciplinary in nature, it was not necessary that he determine reasonableness. The Member did comment, however, that the actions were reasonable and necessary in the response to a global pandemic to safeguard public health, even if not disciplinary in nature.[24]
[24] Reasons, [125].
The appellant accepted the respondent’s position in respect of capacity for work. Accordingly, the Certificate of Determination issued on 17 February 2023 records:
“The Commission determines:
1.     The [respondent] sustained psychological injury on or about 27 August 2021 arising out of or in course of her employment with the [appellant].
2.     The [respondent’s] employment with the [appellant] was the main contributing factor to her injury.
3.     The injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the [appellant] in respect of a disciplinary matter.
4.     The [respondent] has had no current work capacity for any employment since 13 October 2021.
5.     The [appellant] is to pay the [respondent]:
(a)weekly compensation benefits at the rate of $2,072.67 from 13 October 2021 to 12 January 2022 pursuant to s 36(1) of the Workers Compensation Act1987, and
(b)weekly compensation benefits at the rate of $1,658.14 from 13 January 2022 to date and continuing pursuant to s 37(1) of the Workers Compensation Act1987.
6. The [appellant] is to pay the [respondent’s] costs and expenses pursuant to s 60 of the Workers Compensation Act 1987.”

GROUNDS OF APPEAL

The appellant relies on three grounds of appeal, set out in the following manner:
“Ground (a) - The Member erred in finding that the respondent’s employment was a substantial contributing factor to her injury.
Ground (b) - The Member erred:
(i) in failing to give sufficient weight to evidence that, at the relevant time, the respondent knew that she would ultimately suffer disciplinary action and dismissal.
(ii) in failing to construe the meaning of the relevant email as it would be understood by a person in the position of the respondent.
(iii) in finding that the appellant had failed to meet its evidentiary burden to establish its intent to propose action in respect of discipline or dismissal.
(iv) in failing to consider that proposed action in respect of discipline or dismissal must be perceived as such by a worker against whom the action is directed.
Ground (c) - the Member erred by having regard to evidence that failed to meet the standard of being rationally probative in finding:
(i) That the alleged bullying and harassment of the respondent by the appellant was a substantial contributing factor to the respondent’s injury; and
(ii) That the alleged bullying and harassment of the respondent by the appellant occurred at a time consistent with the alleged bullying being a substantial contributing factor to the respondent’s injury of 27 August 2021, when there was no evidence of the time when the alleged bullying occurred;
(iii) That the appellant had not proved that the [respondent’s] injury was ‘wholly or predominantly’ caused by action for which s11A of the 1987 Act provided a defence.”

PRELIMINARY ISSUE

Before this case was decided at first instance, the Commission had heard and determined another COVID-19 vaccination mandate case involving an employee of the appellant sustaining a psychological injury arising from the vaccination requirement, in Dawking v Secretary, Department of Education,[25] a decision dated 3 November 2022. The Commission found in favour of the worker in that matter. The non-presidential member’s decision in Dawking was appealed to a Presidential member and that appeal was dismissed by Deputy President Wood on 1 May 2023.[26] The Presidential decision was then appealed to the Court of Appeal. The parties in this matter agreed for this appeal to be held in abeyance pending delivery of the Court of Appeal decision. The Court of Appeal decision was issued on 31 January 2024 in Secretary, Department of Education v Dawking,[27] dismissing the appellant’s appeal in that matter, affirming the determination of Deputy President Wood.
[25] [2022] NSWPIC 611.
[26] Secretary, Department of Education v Dawking [2023] NSWPICPD 23.
[27] [2024] NSWCA 4.
Consequent upon the delivery of the Court of Appeal decision in Dawking, the parties in this matter were invited to make submissions about the effect, if any, that the Court of Appeal decision might have upon the appeal in these proceedings. Submissions were received and the matter was then allocated to me to determine this appeal.
Neither party considered that Dawking identified any new principle relevant to this appeal. I accept those submissions.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) 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.”
The appellant has requested an oral hearing in this matter, citing the fact that the matter concerns “the application of ss 9A and 11A of the [1987 Act] in the unprecedented circumstances of the response of the Government of New South Wales to the COVID-19 pandemic and the consequent effect on public sector employers and employees.”[28] The respondent says that the matter does not require an oral hearing.[29]
[28] Appellant’s submissions, [4].
[29] Respondent’s submissions, [23].
Having 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 by the parties, 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. I therefore decline the appellant’s request for an oral hearing.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

LEGISLATION

This appeal pertains to findings in respect of substantial contributing factor under s 9A of the 1987, and s 11A of the 1987 Act.
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
…
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—(a)      the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury ...”
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

DISCUSSION

Principles on appeal

An appeal under s 352 of the 1998 Act is “limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”[30]
[30] Section 352(5) of the 1998 Act.
This approach has been discussed in Raulston v Toll Pty Ltd[31] and this has been consistently the approach to the consideration of appeals under s 352 of the 1998 Act. In terms of this appeal, the remarks at [19]–[20] in Raulston have relevance and I set them out in full:
[31] [2011] NSWWCCPD 25 (Raulston).
“19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant … :
(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.
20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”

As to Ground (a)

The appellant alleges that the Member was in error for failing to follow a decision of another member of the Commission, Member Wynyard, in the matter of Bjekic v State of New South Wales (Western Sydney Area Local Health District).[32] In Bjekic, the State Government had made masks compulsory in all indoor settings in non-residential buildings as a part of its then response to the COVID-19 pandemic. Mr Bjekic worked at a hospital and as a result of wearing a mask, suffered aggravation of his sinusitis. Member Wynyard found that this was as a result of the Government decision rather than any action taken by the employer. The appellant asserts that the principle of comity applies to the Commission and that the Member in this matter either had to follow Bjekic or set out why it was wrong.[33] The appellant says that the Member did neither and was thus in error. The appellant sets out at paragraph [11] of its submissions, the findings it asserts should have been made had Bjekic been followed, namely, that before 27 August 2021, the nature of the respondent’s employment had not been injurious; that the email of 27 August 2021 was notification by the State Government of the mandatory vaccine requirement and thus, the injury sustained on 27 August 2021 was caused by the State Government and not employment, and nor could this communication give rise to employment being a substantial contributing factor.
[32] [2022] NSWPIC 214 (Bjekic).
[33] Appellant’s submissions, [8]–[9].
The respondent says that the circumstances of Bjekic are different to the facts of this matter. The facts in this matter, it is asserted, are “a multi-factorial set of causative events” between 27 August 2021 and 13 October 2021.[34] The respondent says that the Member did not accept that the respondent’s injury was caused by Government as opposed to action by the appellant and that as a result, the ground should be rejected.
[34] Respondent’s submissions, [13].

Consideration

The hearing in this matter took place before the Member on 17 January 2023, that is after Bjekic had been decided by Member Wynyard in 2022. I have carefully reviewed the transcript of the hearing on 17 January 2023. At no stage was Bjekic either raised with the Member nor was the argument now being put in this ground ever advanced. It is not an error to not deal with an argument that was not put.[35] This ground fails on this basis alone.
[35] Brambles Industries Limited v Bell [2010] NSWCA 162 (Brambles), [30].
I would further remark that the argument about comity and Bjekic was also conducted by the appellant before Deputy President Wood in Secretary, Department of Education v Dawking.[36] The Deputy President dealt with this argument at [109] and [112] as follows:
“In any event, the [Department] misunderstands the concept of comity …
The determination required of the Member in the present matter was a question of causation of the injury and whether the respondent’s employment was a substantial, or the main contributing factor to the injury. The Member’s conclusions were conclusions of fact. The same can be said in respect of Bjekic. As Chen J observed in Comino,^[[37]] judicial comity is limited to questions of law and statutory interpretation and has no application to factual determinations. Neither case turned upon questions of statutory interpretation or principles of law. In any event, the appellant has not made it apparent as to how a failure to apply comity could constitute error of the kind required by s 352(5) of the 1998 Act, which allows for an appeal to a Presidential Member to be brought only on the basis of error of fact, law or discretion.”
[36] [2023] NSWPICPD 23.
[37] Comino v Kremetis [2023] NSWSC 32.
Dawking was appealed to the Court of Appeal. The Court of Appeal, citing the passages I have just recounted from the Deputy President’s decision, noted that those aspects of the reasons were not challenged on appeal.[38]
[38] Secretary, Department of Education v Dawking [2024] NSWCA 4, [77].
The findings made by the Member sought to be impugned in this ground were findings of fact. Indeed the appellant sets out the preferred findings of fact on the question of injury as I have referred to at [38] above. As stated in Dawking, the principle of comity does not apply to findings of fact.
No error in approach on the part of the Member has been disclosed.
Ground (a) is dismissed.

As to Ground (b)

The appellant says that in the alternative, if the cause of the injury was not action by the Government but rather was caused by the appellant, the appellant calls in its aid the s 11A defence.[39] The appellant points to the Government announcement on 27 August 2021 that public school teachers had to be vaccinated. The appellant then says that the notes of Dr Sahade, general practitioner, on 30 August 2021 are instructive. The appellant says that “the respondent understood that, as a consequence of refusing to be COVID vaccinated, she would, ultimately, be dismissed.”[40]
[39] Section 11A of the 1987 Act.
[40] Appellant’s submissions, [15].
The appellant sets out the Member’s finding which is challenged in this ground as follows:
“At [116]–[118] of his reasons the Member considered the proposition that on 30 August 2021 at the latest the respondent was aware that she faced dismissal as a consequence of failing to comply with the mandate. The Member found that the respondent’s own understanding that she faced dismissal as a consequence of refusing to be COVID vaccinated did not meet the test required to establish the employer’s intention of proposing to take disciplinary or dismissal action and that there had been no ‘meeting of the minds’ on the point”.[41]
[41] Appellant’s submissions, [16].
After making these preliminary points, the appellant proceeds to submit in respect of each of the four sub grounds and the alleged errors, which I will deal with separately.

As to Ground (b)(i)

The appellant asserts that at reasons [116]–[118], the Member made four errors. Whilst I have summarised these reasons above, it is helpful that I set out in full reasons [116]–[118] before turning to the four alleged errors:
“116. In response to a question by me at the conclusion of the [respondent’s] submissions, Mr Stockley [counsel for the appellant in the proceedings before the Member] said there could be no doubt that the action or action to be taken was with respect to disciplinary action or termination because the [respondent] herself considered her position with the [appellant] to be in jeopardy. He drew attention to the email of 5 October 2021 which set out that disciplinary action may be a consequence of the failure to comply with the Public Health Order.
117. I emphasised reference in the [appellant’s] emails to staff to the word ‘may’ in it communicating the risk of disciplinary [action] for unvaccinated [staff] earlier in these reasons for decision. Mr Stockley said that the (disciplinary) sanction was clearly in contemplation and therefore action taken or to be [taken] as a relevant test for s 11A(1) had clearly been satisfied. Giving the word ‘may’ its ordinary meaning the [appellant] was at best expressing a possibility. That a sanction is a possibility seems to be problematic in arguing that action taken was with respect to discipline.
118. No mention is made in the early communications of consequences for staff who were not vaccinated by the due date. Rather the generic communications are appropriately detailed and supportive if not pastoral in their tone. This no doubt reflected the [appellant’s] honest desire to provide a safe workplace both for its staff and the pupils in its care. Mr Stockley suggested the fact that the [respondent] reported fearing she may lose her job points to her understanding the [appellant] was taking disciplinary action or proposing to take. Beyond a treating general practitioner recording the [respondent’s] alleged concerns, there is no evidence as to what she was thinking and whether there was a meeting of the minds on [the] point as early as 27 August 2021 or prior to 13 October thereafter. What the [respondent], who was already presenting with symptoms consistent with anxiety and stress, may have feared, possibly consistent with her diagnosed condition does not establish the [appellant] was taking or intended to undertake action with respect to discipline or termination of her employment. Indeed the absence of any reference to the issue bespeaks no such intent on point at that time. Surely a well resourced and sophisticated employer such as the [appellant], which was taking maximum care for its employees and providing otherwise clear and detailed information, would have spelt out the possible consequences much sooner. It did not do so until 27 September 2021 and even then it was expressed as one potential outcome by use of the word ‘may’ (be taken). By the time of the example Mr Stockley relied upon emerged there had been a series of events and communications impacting the [respondent’s] psychological condition. The [appellant’s] position a retrospective view rather what was being conveyed and impacting upon the [respondent] at in the period from 27 August until she ceased work.” (emphasis added)

The appellant takes issue with the Member’s finding as I have emphasised in the excerpt above, that he need not give weight to the entry made by Dr Sahade on 30 August 2021. The appellant asserts that the note taken by Dr Sahade was unambiguous, unchallenged and was strong evidence contrary to the Member’s finding that “there is no evidence as to what she was thinking and whether there was a meeting of the minds on [the] point”[42] of a process that would ultimately end with the respondent’s dismissal.
[42] Reasons, [118].
The respondent says this appeal ground is misconceived. The appellant’s submission at the hearing, that the worker’s perception of her position being in jeopardy was evidence of action by the employer with respect to discipline or termination, was expressly rejected by the Member at [118].

Consideration

For the appellant to succeed, error must be shown in how the doctor’s note was treated.[43]
[43] Raulston; s 352(5) of the 1998 Act.
Dr Sahade’s clinical note appears at page 54 of the ARD and reads as follows:
“Monday August 30 2021 14:07:00
Dr Myfanwy Sahade
Visit type:
Surgery Consultation
distressed as does not feel happy to have the COVID vax but has been told she must have this done as she is a teacher
explained COVID vaxs in detail and mode of action
…
catastrophising re vaccination - saying she will stick with her philosophy and lose her job and lose her income and not buy her own place as planned etc
has had all her other vaccinations
anxious appearing
alert
reactive facial expression
mildly irritable
nil psychosis
not suicidal
imp- anxiety
for- counselling given
SSRI medication discussed
has Uplift referral already - has some left - she will check
Actions:
…”
Counsel for the appellant addressed this entry in support of the submission that the respondent was aware that not being vaccinated meant that disciplinary action would result and this allowed the appellant to avail itself of the s 11A defence.[44]
[44] Transcript of proceedings of 17 January 2023, pp 16–17.
The Member dealt with this clinical record at reasons [118], set out above. The appellant’s complaint is that the Member failed to give what was recorded in the notes greater weight in the consideration of the question as to whether the employer had commenced action with respect to discipline and/or termination.
In Northern New South Wales Local Health Network v Heggie[45] Sackville AJA said:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”[46]
[45] [2013] NSWCA 255 (Heggie).
[46] Heggie, [59(i)].
The Member in construing this clinical entry was in the process of deciding its relevance to the question of whether “the [appellant] was taking or intended to undertake action with respect to discipline or termination”.[47] It has long been accepted that clinical notes need to be approached with caution.[48] In terms of the use the appellant was attempting to persuade the Member to make of the notes, the Member was right to look at them with the caution of which Basten JA spoke about in Mason. In this appeal ground, the appellant asserts the clinical notes are in fact evidence of the respondent’s awareness of the existence of a process which could lead to the respondent’s dismissal.
[47] Reasons, [118].
[48] Mason v Demasi [2009] NSWCA 227 (Mason), [2], per Basten JA.
I would remark that the appellant called no evidence itself to support its assertion that at this time, 30 August 2021 (the days after the email of 27 August 2021), it had initiated disciplinary action against the respondent. Rather the Member was invited to infer this from the clinical notes. Even giving the “broad view” to be taken with respect to such action in accordance with Heggie, it still must be the action of the employer. If one reads the appellant’s email communications about the COVID-19 vaccine mandate, described by the Member as “appropriately detailed and supportive if not pastoral in their tone”, it would be hard to draw any conclusion that they are disciplinary in content or tone. Indeed I would note that no issue is taken with the Member’s apt description of them as being “supportive if not pastoral”. Clearly the Member was not of the view that the emails had a quality constituting disciplinary action, whether actual or proposed. This was a factual finding that was within the Member’s ability to make, without error, as the first instance decision maker. I would note that nowhere, either before the Member or on this appeal, has the appellant pointed to any salient aspect of the email communications as constituting the commencement of, or a proposal to commence, disciplinary action against the respondent before the email of 5 October 2021 suggested that disciplinary action “may” be taken. But this email of 5 October 2021 is not the point being made by the appellant in this ground.
The respondent, as noted by the doctor, was “catastrophising” about what might happen. This means in the ordinary sense of the word, that the respondent was contemplating the worst case scenario of what may happen. The Member was right not to accept that record as the evidence of the commencement of a process (or a proposed process) of disciplinary action based on the highly subjective fear of the respondent as recorded in the notes. The appellant could have led evidence on this point but did not. This argument is an attempt, in the absence of direct evidence which the appellant could have led, to invite an inference to be drawn adverse to the respondent. The Member was right to deal with the matter as he did.
No error in how the Member dealt with the clinical note has been established. Ground (b)(i) is dismissed.

As to Ground (b)(ii)

The appellant argues this ground in a single paragraph which I set out in full:
“Secondly, the Member allowed himself to be distracted by the wording of the email of 27 August 2021 and failed to give full force and effect to its meaning. The respondent had been a teacher employed by the appellant for 17 years and must have been thoroughly familiar with the management speak used by the appellant in dealing with its teachers. The meaning of the email of 27 August 2021 was unambiguously clear to the respondent. She understood that if she refused the vaccine mandate, she risked being dismissed. The clearest evidence of her unambiguous understanding of the meaning of the email are her words as recorded by Dr Sahade in the consultation of 30 August 2021. And, of course, the respondent was right. She was ultimately dismissed.”[49]
[49] Appellant’s submissions, [18].
The respondent opposes this ground on the same basis that she relied upon in response to Ground (b)(i) which I have summarised above.

Consideration

There are a number of problems with this appeal ground. Firstly, the argument as framed by the appellant in this ground was never put in those terms to the Member. As I have set out above, it is not an error to not deal with an argument that has not been put.
Secondly, the Member is criticised for not inferring the true meaning of the 27 August 2021 email, now said to be “management speak”, or that the respondent would have interpreted this “management speak” in a way which revealed the true nature of the communication as being either the commencement or proposal to commence disciplinary action. In short, the submission seems to suggest that whether the email in question constituted disciplinary action, or a proposal to commence such action, depended entirely upon the subjective interpretation of the email by the respondent. I reject the suggestion that disciplinary action depends on the subjective interpretation of the email by the respondent. There is also no evidence led by the appellant to support the proposition that the respondent was “a teacher of 17 years and must have been thoroughly familiar with the management speak used by the appellant” . This assertion is not supported by evidence.
The appellant led evidence from Dr Paul Wood, Executive Director Educational Standards, who said the 27 August 2021 email was sent “to all school based staff”. Dr Wood describes the email’s purpose was to keep the staff “updated as the situation was moving quickly”.[50] Nowhere in his statement does Dr Wood ascribe the email as having the quality of disciplinary action, either actual or proposed. Given that the email went to all school based staff in New South Wales, it cannot be the case that every recipient of it was, at that stage, under disciplinary action, either actual or proposed. Tellingly in terms of this submission, nowhere in his statement does Dr Wood give evidence to the effect of what the “management speak” of the email actually meant.
[50] Reply, p 65, [7].
The Member described his view of the email communications in the terms set out at reasons [118], which is in simpatico with the evidence of Dr Wood.
There is nothing in this complaint. Ground (b)(ii) is dismissed.

As to Ground (b)(iii)

The appellant’s complaints in this ground appear at paragraphs [10]–[20] of its submissions. In essence, the appellant alleges the following errors.
Firstly, as to the to the Member’s finding that the appellant had failed to meet its evidentiary burden in establishing that the 27 August 2021 email constituted action taken, or proposed to be taken, with respect to discipline, the appellant says that the Member erred in finding that the burden of proof falls on the appellant. The appellant says the Commission is not a court and that its proceedings are “inquisitorial in nature”. Further it is argued that “it is doubtful, without statutory intervention, that there is ever a strict burden of proof on the parties”.[51]
[51] Appellant’s submissions, [19].
Secondly, the appellant says that the note made by Dr Sahade made such evidence unnecessary as it clearly revealed that the respondent understood the full purport and effect of the email of 27 August 2021. Namely, that the appellant was proposing action in respect of discipline and dismissal.[52]
[52] Appellant’s submissions, [20].
The respondent answers this submission in a single paragraph:
“This ground should be rejected. It is clear the Member was not satisfied that the employer's email of 27 August 2021 was an action with respect to discipline or termination. A view as to how the Member treated the employer's evidentiary burden simply does not arise or have any probity in respect of this appeal.”[53]
[53] Respondent’s submissions, [18].

Consideration

I do not accept the appellant’s argument that it does not bear the onus of proof under s 11A of the 1987 Act. This proposition has been established in cases such as Department of Education and Training v Sinclair[54] and Pirie v Franklins Ltd[55] where his Honour Judge Neilson held as follows:
“The next case to which I was referred is that of my colleague Judge Armitage in Ritchie v The Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727. In that case his Honour was impressed by the reasoning of his Honour Judge Geraghty in Irwin v The Director General of School Education (unreported, 18 June 1998, matter number 14068 of 1997). His Honour there adopted what fell from his Honour Judge Geraghty in Irwin’s case that under the current version of s 11A the onus falls upon the employer to prove that the action that it took in respect of the retrenchment of Mr Pirie was reasonable.”
The appellant in this matter bore the evidentiary burden which the Member was not satisfied had been met.
[54] [2004] NSWWCCPD 90, [23].
[55] [2001] NSWCC 167; 22 NSWCCR 346, [48].
Secondly the appellant states that Commission proceedings are “inquisitorial in nature”, as an adjunct to its submission that there is no burden of proof. This proposition also must be rejected. In South Western Sydney Area Health Service v Edmonds,[56] McColl JA considered the legislative framework of the former Workers Compensation Commission in some detail.[57] Her Honour remarked, “I would merely observe that the features of the adversarial model to which I have referred indicate, in my view, that the Commission cannot be described as ‘inherently inquisitorial’, at least if by that expression, it is intended to connote the ‘pure’ European model of such processes.”[58] The Commission is the statutory successor to the former Workers Compensation Commission. For the purposes of considering this argument, there has been no relevant change to the content of the statutory provisions examined in Edmonds which would affect the applicability of Edmonds to the consideration of this argument in the current Personal Injury Commission.
[56] [2007] NSWCA 16 (Edmonds).
[57] Edmonds, [86]–[96].
[58] Edmonds, [96].
I would also note that a Member’s decision is, subject to the 2020 Act or its enabling legislation,[59] “final and binding”,[60] which is more suggestive of an exercise of judicial power rather than the outcome of an inquisitorial process. Findings of fact can create estoppels inter partes in workers compensation matters,[61] and this is not a feature of inquisitorial proceedings. The way that applications are commenced and responded to is modelled on adversarial rather than inquisitorial proceedings.[62] A recent Court of Appeal decision has noted the primacy that Parliament has given to the Commission as a fact-finder and a specialist tribunal.[63]
[59] See s 5(1) of the 2020 Act, “Definitions”.
[60] Section 56(1) of the 2020 Act.
[61] Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190, [125]–[128], per Ward P.
[62] Edmonds, [94]–[95].
[63] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [37].
Whilst I accept that there are some aspects of the Commission’s legislative framework that have an inquisitorial colour, for example s 43(2) of the 2020 Act is classically inquisitorial, such a power is still subject to the principles of natural justice.
It appears that the essence of this aspect of the appellant’s argument is that if the Commission operates an inquisitorial dispute model, then neither party bears an onus of proof. For the reasons set out above, I do not accept this submission. Employers are afforded a defence under s 11A of the 1987 Act, which absolves them from liability. The employer (appellant in this matter) must prove the constituent elements of s 11A in order to avail itself of the benefit of the defence.
Finally I would remark that, once again, the proposition in this ground was not put to the Member. The Member was not in error in failing to deal with an argument that was not put.[64]
[64] Brambles, [30].
I have dealt with the appellant’s complaint about Dr Sahade’s notes in response to Ground (b)(i) above. For the same reasons I gave in that ground, I do not accept the appellant’s assertion of error in this ground as to how the doctor’s notes were dealt with by the Member.
There is nothing in this complaint, the ground is dismissed.

As to Ground (b)(iv)

The appellant frames this ground in the following manner:
“Fourthly, the Member’s finding that action proposed to be taken with respect to discipline or dismissal could only be established by evidence from the appellant misses the point that it was the subjective perception of that action that caused the respondent’s psychological injury. On the facts before the Member there was clear and cogent evidence that the respondent perceived, correctly, that the email of 27 August 2021 was proposing action with respect to discipline and ultimately dismissal.”[65]
[65] Appellant’s submissions, [21].
The respondent says that this ground should be rejected, arguing that the Member “made no such finding and took account of the evidence presented by both parties in these proceedings.”[66]
[66] Respondent’s submissions, [19].

Consideration

This ground is simply another way of advancing the arguments that appear in Grounds (b)(i) and (ii) above, both of which I have dismissed. For the same reasons expressed in considering those two grounds, this ground cannot succeed. The manner in which the Member dealt with the doctor’s notes of 30 August 2021 was well within the Member’s fact finding discretion.
Additionally, the appellant has not specified where the Member said that “action proposed to be taken with respect to discipline or dismissal could only be established by evidence from the appellant”. I accept that reading the decision as a whole,[67] the purport of the Member’s decision is that the Member was not satisfied that the appellant had proven that action with respect to discipline and/or termination had commenced in August, specifically by way of the email of 27 August 2021. As I held above, the appellant bore the burden of proving this had in fact commenced and was unable to do so. There is no error in the Member’s approach.
[67] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
Ground (b)(iv) is dismissed.

As to Ground (c)

The appellant frames this ground by starting with what appears to be a preamble about deficiencies in the respondent worker’s statement before moving to three sub-grounds where the errors are developed.
In this ground the appellant seeks to impugn the Member’s reliance upon the respondent’s statement of evidence, asserting that the Member erred by relying on a “non-chronological lay statement”. The appellant notes that the Commission is not bound by the rules of evidence but says “… the minimum standard of evidence is that it be rationally probative of the fact under consideration: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 per Brennan J at 41; Minister for Immigration and Ethnic Affairs v Pochi (1980) per Deane J at 67–68.”[68]
[68] Appellant’s submissions, [22].
The appellant says that “[t]he statement of the respondent was so deficient that, at best, it provided no assistance to the Member in determining the chronology of events that she relied on or, at worst, was misleading.”[69] The appellant continues by submitting the following:
“It is quite apparent that the respondent’s statement is not only non-chronological, but is positively circular so that there is no basis on which it can be inferred that the alleged bullying referred to by the respondent occurred before or after 27 August 2021.”[70]
[69] Appellant’s submissions, [24].
[70] Appellant’s submissions, [25].
The appellant then points to reasons [122]–[123] where the offending findings about “alleged bullying” were made. I set these two paragraphs out in full:
“122.
If I am wrong in my conclusion that disciplinary action did not commence until

18 November 2021 or giving the [appellant] the benefit of the doubt close to just before or after late September, the [appellant] has failed to directly address the evidence of the [respondent] detailing other workplace events where she was bullied and belittled by colleagues and more senior teachers in managerial roles. It would have been easy for evidence from readily identifiable individuals to be called by the [appellant]. It chose not to do so. These uncontested incidents also impacted the [respondent’s] psychological condition and constitute substantial contributing factors which did not form part of a disciplinary process. They were probably unintended consequences of it but did form part of the actions the [appellant] was taking.
123. The combination of the impact of the communications at least up until late September and the uncontested incidents which the [respondent] says impacted her psychological state on balance negates the [appellant’s] argument that the predominant cause of her condition was reasonable action taken or to be taken by it with respect to discipline or termination.”
The appellant complains that the Member did not make any reference to the evidence that was used to support these findings. The appellant says that the finding of injury being suffered on 27 August 2021 is not contested on appeal. The appellant submits that it is not clear when the bullying occurred to constitute “a substantial contributing factor to the respondent’s injury.”[71]
[71] Appellant’s submissions, [29].

In response to the entirety of Ground (c) the respondent submits the following:
“The worker submits this ground should be rejected and submits the Member did not err throughout his decision in taking into account the worker’s statement of evidence. The Member referred to two incidents impacting the worker’s psychological condition, which are the events set out at paragraphs [39] and [41]. The employer’s appeal submissions at paragraph [25] state there can be no basis for inferring such bullying events occurred before or after 27 August 2021.
The worker submits given the content and context of the worker’s witness statement evidence and the evidence generally in the matter such as the contents of the incident/hazard document referred to by the Member at [75] ‘The teacher (Diane) advised that she is [a]ffected by the need to be vaccinated in order to keep her job. She advised that she feels bullied and harass [sic] ...’, that it was proper and not erroneous for the Member to find these events took place in the interval between 27 August 2021 and the worker ceasing work on 13 October 2021.”[72]
[72] Respondent’s submissions, [20]–[21].

As to Ground (c)(i)

The appellant alleges that the Member made four errors in the findings about bullying. The appellant says:
“First, the respondent’s evidence was not logically probative of the fact that the alleged bullying occurred shortly before 27 August 2021. The bullying could have occurred after the outbreak of COVID but well before 27 August 2021, in which case it would not have been a substantial contributing factor or it could equally have occurred after 27 August 2021 in which case it would not have been a substantial contributing factor. The point is, the Member has made a finding of when the alleged bullying occurred that is not based on logically probative evidence.”[73]
[73] Appellant’s submissions, [30].

Consideration

The rules of evidence do not apply to Commission proceedings[74] and the Commission is to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”[75]
[74] Section 43(2) of the 2020 Act.
[75] Section 43(3) of the 2020 Act.
The Commission’s rules set out the approach for the considering evidence at r 73, which provides the following:
“The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a)     evidence should be logical and probative,
(b)     evidence should be relevant to the facts in issue and the issues in dispute,
(c)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)     unqualified opinions are unacceptable.”
In Onesteel Reinforcing Pty Limited v Sutton[76] Basten JA described the approach thus:
“Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself. Indeed, once inadmissible evidence is before a court without objection being taken, the question for the court is merely one of weight: Makita at [86], last sentence.
Different aspects of Edmonds have been applied in subsequent cases, but none adopts the approach sought to be relied on by the appellant. Thus, in AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; 163 LGERA 245 the Court considered an appeal from a valuation judgment in the Land and Environment Court. Hodgson JA (Bell JA and Gyles AJA relevantly agreeing) noted that reliance had been placed on Edmonds for the proposition that ‘although the Land and Environment Court was not bound by the rules of evidence ..., still there had to be material capable of rationally supporting a conclusion’: at [37]. Hodgson JA continued at [42]:
‘In this case, there plainly was some such material. There was Mr Hack’s evidence as to increased patronage, and Mr Wood’s evidence that this meant increased value in the order of five to ten per cent. Mr Wood did not back this up with any discussion of valuation principle or other reasoning, and this impacts on the weight and cogency of his evidence: Makita ...; ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 at [106]–[110]. However, Mr Wood was an expert valuer, and in my opinion his opinion was admissible; and although the weight of the evidence may be considered slight because of the lack of reasons, it was nevertheless material capable of rationally supporting a conclusion.’”[77]
[76] [2012] NSWCA 282 (Sutton).
[77] Sutton, [83]–[84].
Earlier in the same case, Allsop P said:
“It is nevertheless necessary to be alert to the fact that ‘the rules of evidence, excluded by statute, [should not be allowed] to ‘creep back through a domestic procedural rule’’: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (at [17]) per French CJ.”[78]
[78] Sutton, [59].
The approach to the assessment of evidence in the Commission is therefore a function of the statutory duty found in s 43 of the 2020 Act and r 73 of the Commission Rules.
Finally, I would also note that given the appellant is challenging the Member’s findings of fact relating to bullying, such findings would not normally be disturbed if they have rational support in the evidence.[79]
[79] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
Before dealing with the substance of this ground, it is necessary to set out a few matters.
The respondent’s statement,[80] at which much criticism has been levelled by the appellant, describes contact with her employer “[o]nce the mandatory vaccine directive was implemented”.[81] After this date, which is not identified, the respondent describes the various exchanges which she says caused her to feel anxious and/or pressured. A fair reading of this statement from paragraph [12] onwards does reveal various enquiries about the respondent’s vaccination status and her leave. The respondent identifies the school principal and a Ms Joudo, the appellant’s health and well-being advisor, as contacting her. A fair reading of the statement appears to place these matters, even absent a nominated date, to be in the period after the announcement of the vaccine mandate and its implementation by the appellant. That is, in the period commencing 27 August 2021 and thereafter.
[80] ARD, pp 1–4.
[81] ARD, p 1, [12].
I would record that the appellant led no medical evidence. The appellant also led no factual evidence to counter the respondent’s statement, and in particular no evidence from the school principal or from Ms Joudo.
The appellant says that the Member’s finding that the injury occurred on 27 August 2021 is not contested.[82] This is the effect of the first order in the Commission’s Certificate of Determination of 17 February 2023. But if one reads the Member’s decision, this is not the finding. At reasons [107], the Member says: “The medical evidence overwhelmingly supports the proposition that she developed a psychological condition as a result of workplace events from 27 August 2021” (emphasis added). And at [108]: “I agree with the [respondent’s] counsel that this injury commenced with the receipt of the email on 27 August 2021 and there were a series of events thereafter which saw her become incapacitated for work on 13 October 2021 …” (emphasis added). I would also note that the monetary orders made by the Member commence from 13 October 2021.[83] Finally, in the summary section of the decision, the Member said at [128]: “The [respondent] sustained a psychological injury on 13 October 2021 arising out of or in the course of her employment with the [appellant] from 27 August 2021 to that date.” If one reads the decision as a whole, and in particular from reasons [106] onwards, the passages I have just set out accurately reflect the findings made by the Member on causation of the injury, contrary to the appellant’s assertion on appeal, that the date was found to be 27 August 2021. Reading the decision as a whole reveals that not to be the case. Clearly, the first order does not accurately reflect the findings that were actually made in the decision. The first order of the Certificate of Determination is readily able to have such an obvious error corrected.[84] On this point, the parties were directed to provide their view as to the date of injury noting what appeared to be an error in Order [1]. Before this decision was issued, both parties agreed that the date of injury was in fact 13 October 2021.
[82] Appellant’s submissions, [28].
[83] See Orders 4 and 5(a) of the Certificate of Determination dated 17 February 2023.
[84] Section 57(2)(b) of the 2020 Act.
Finally I would note that the appellant has not addressed on s 43 of the 2020 Act or r 73 of the Commission Rules, rather reliance has been based upon the authority of Pochi. Having considered the passages the appellant referred to in the two decisions (Deane J and Brennan J), I am satisfied that these dicta relied on by the appellant are to the same effect as r 73. Namely, what was required was “ … rationally probative evidence and not merely raised before it as a matter of suspicion or speculation …”.[85] Further, Brennan J said:
“The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that ‘this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force’, as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board [1938] 305 US 97 at 229.”[86]
[85] Minister of Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 31 ALR 666, 685 L10 per Deane J.
[86] Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 26 ALR 247, 256.
The Member was alive to the deficiencies in the respondent’s statement.[87] Because of these deficiencies, the Member examined other aspects of the material that was before him in order to locate a rational basis in which to make findings. At reasons [107], the Member refers to the evidence from two general practices which record the adverse effect the 27 August 2021 email had on the respondent. The Member, also in [107], referred to “further communications and incidents in the workplace which also went uncontested by the [appellant]” as having an effect upon her.
[87] Reasons, [18], [104].
The question for deciding this ground is thus clear – was this material sufficiently probative in the sense required by r 73? This ground really only takes issue with the aspect of bullying, no issue is taken with the use that was made of the medical records. The issue is whether the evidence is sufficiently probative that the incidents of bullying took place after 27 August until 13 October 2021?
The issue that arises on this point is analogous to that discussed by Heydon J in Strong v Woolworths Ltd.[88] There his Honour was discussing the application of the rule in Blatch v Archer[89] and its application to the circumstances in Strong. His Honour said:
“In the second sense, ‘evidential burden’ refers to circumstances in which a plaintiff calls evidence sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in the plaintiff's favour. There is then said to be an ‘evidential burden’ in the sense of a ‘provisional’ or ‘tactical’ burden on the defendant: if the defendant fails to call any or any weighty evidence, it will run a risk of losing on the issue – that is, a risk that at the end of the trial the trier of fact will draw inferences sufficiently strong to enable the plaintiff to satisfy the legal (ie persuasive) standard of proof. The ‘provisional’ or ‘tactical’ burden raises the question whether a defendant should as a matter of tactics ‘call evidence or take the consequences, which may not necessarily be adverse’.”[90] (citations omitted)
And:
“The better view is that the ‘evidential burden’ to which Lawton LJ referred [in Ward v Tesco Stores Ltd [1976] 1 WLR 810] was the ‘provisional’ or ‘tactical’ burden of meeting the plaintiff's evidence or facing the possible peril that the trier of fact would draw inferences from it sufficient to satisfy the legal (ie persuasive) burden resting on the plaintiff. This is what Jacobs J was referring to when he said that in some circumstances ‘the plaintiff need only produce slight evidence of negligence before a factual onus may shift to a defendant.’ Dulhunty v J B Young Ltd (1975) 50 ALJR 150 at 151; 7 ALR 409 at 411. That is an ‘evidential burden’ in the second sense discussed above.”[91]
[88] [2012] HCA 5; 246 CLR 182 (Strong).
[89] (1774) 1 Cowp 63, 65; [98 ER 969, 970].
[90] Strong, [53].
[91] Strong, [60].
The passages I have just described are apt to the circumstances of this case. The appellant did not call evidence to respond to the respondent’s statement about various events which caused her to feel anxious and pressured. Two employees of the appellant were sufficiently identified and no evidence was led. Even though the Member was alive to and commented upon the deficiencies in the respondent’s evidence, the appellant ran the risk that “the trier of fact will draw inferences sufficiently strong” as was discussed by Heydon J in Strong, even on evidence which may be considered “slight”. This is precisely what happened in this matter.
There were other pieces of evidence available to the Member to augment the respondent’s statement. These formed a rational basis for the Member to find facts, even having regard to the deficiencies of the respondent’s statement. As discussed in Sutton (above), once this material was before the Member, the weight to be ascribed to it was a matter for the Member.
The type of reasoning undertaken by the Member was an evaluative one and of the type discussed by Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[92] where the following was said at [28]: “in [the] process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.” This was precisely the task that the Member undertook.
[92] [2001] FCA 1833.
No error has been established by the appellant. Ground (c)(i) is dismissed.

As to Ground (c)(ii)

In this ground the appellant charges that the Member inferred a fact, namely the date upon which the alleged bullying incident took place, for which there is no evidence. The appellant says that the fact inferred is said to have occurred shortly before 27 August 2021.[93]
[93] Appellant’s submissions, [31].

Consideration

Unhelpfully, the appellant has not identified where the offending section of the Member’s decision appears.
I cannot identify the finding, sought to be impugned in this ground, namely the inferring of a fact that bullying occurred shortly before 27 August 2021. This ground does not identify the asserted error in a meaningful way.[94] As described in Raulston above, intervention on appeal requires the identification of error. This ground fails this requirement.
[94] Kowalski v Repatriation Commission [2011] FCAFC 43, [21].
Indeed if one reads the section of the Member’s decision entitled “Findings and Reasons” from [104] onwards, the findings are that any such actions which took place and which caused injury, did so after 27 August 2021 up until 13 October 2021.[95] To the contrary of that which is alleged in this ground, the Member in fact found that the respondent had capacity to work in the months before August 2021 and that the psychological injury dates from 27 August 2021.[96]
[95] See reasons [107], [108], [110] and [128].
[96] Reasons, [107].
This ground has not been established. Ground (c)(ii) is dismissed.

As to Ground (c)(iii)

The appellant frames this ground in the following manner:
“Thirdly, because there was no evidence on which the Member could rely to establish when the alleged bullying occurred, the only rationally probative evidence that was before the [M]ember was that the respondent had been in receipt of psychological counselling well before 27 August 2021 and that the respondent had suffered mental injury as a consequence of receiving the email of 27 August 2021. As these were the only two facts established by logically probative evidence it followed that the only reasonable inference that could be drawn was that the respondent’s [injury] was caused by the reasonable action proposed to be taken in respect of discipline or dismissal on 27 August 2021. As a consequence, the appellant did not need to adduce further evidence of the uncontested facts.”[97]
[97] Appellant’s submissions, [33].

Consideration

The problem with this ground is manifest. No error said to have been committed by the Member is articulated. Rather, the ground is an impermissible attempt to re-prosecute the merits. Intervention on appeal requires the identification and establishment of error.
The ground also suffers from the problem that the finding about the true nature of the email on 27 August 2021 has not been successfully challenged. It was not accepted by the Member that this email was action, or proposed action, with respect to discipline or dismissal. This finding has not been upset on appeal and to the extent that this ground relies upon the appellant’s preferred characterisation of the 27 August 2021 email carrying the day, the ground must fail.
This ground has not been established.
Ground (c)(iii) is dismissed.

DECISION

The appellant has failed to establish error on the part of the Member and as a consequence the Member’s decision must stand.
As identified at [101] of this decision, and following agreement of the parties as to the date of injury being 13 October 2021, order 1 of the Certificate of Determination dated 17 February 2023 is amended to correct the date of injury and read as follows:
“The applicant sustained psychological injury on 13 October 2021 arising out of or in the course of her employment with the respondent from 27 August 2021 to that date.”
The Certificate of Determination dated 17 February 2023 is otherwise confirmed.

Judge Phillips
PRESIDENT

4 April 2024