Secretary, Department of Education v Willow - [2024] NSWPICPD 33

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secretary, Department of Education v Willow [2024] NSWPICPD 33
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Stephen Willow
INSURER:	Allianz – As Agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-W5657/22
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	5 June 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 8 May 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – s 11A(1) of the Workers Compensation Act 1987; whether action taken or proposed to be taken with respect to discipline; factual findings; considering Raulstonv Toll Pty Ltd [2011] NSWWCCPD 25; Department Education and Training v Sinclair [2005] NSWCA 465
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S Grant, counsel
Hall & Wilcox
Respondent:
Mr S Moffet, counsel
Walker Law Group
DECISION UNDER APPEAL:	Willow v Secretary, Department of Education [2023] NSWPIC 206
PRINCIPAL MEMBER:	Ms J Bamber
DATE OF PRINCIPAL MEMBER’S DECISION:	8 May 2023

INTRODUCTION AND BACKGROUND

Stephen Willow, the respondent, (Mr Willow) worked as a teacher with the appellant (or its predecessors) from the mid-1990’s until 2011 when he became a full-time music teacher at the Northern Beaches Secondary School, Cromer (Cromer). In 2018, he claimed, under the Workers Compensation Act 1987 (the 1987 Act), that he sustained a psychological injury as a result of events at Cromer between 2015 and 2018. On 22 January 2019, the appellant facilitated his transfer to Chatswood High School (CHS). By Application to Resolve a Dispute (ARD), he claimed weekly compensation under the 1987 Act from 5 November 2021 to date and continuing alleging a deemed date of injury on 5 November 2021 (the injury).
The Principal Member noted in her reasons[1] that Mr Willow particularised his allegations of events giving rise to the injury as falling into four main categories, broadly summarised as follows:
(a)    “harassment” of him at Cromer by the principal and another teacher;
(b)    the appellant’s handling of the harassment claim from 2015 to 2018;
(c)    the “harmful reception” from CHS teachers after the transfer in January 2019, and
(d)    the “department’s mandate” that “required teaching staff undergo” COVID-19 (COVID) vaccinations in 2021.[2]
[1] Willow v Secretary, Department of Education [2023] NSWPIC 206 (reasons).
[2] Reasons, [5].
The Principal Member said that by 2021, she was unable to find any “real events occurring” as to categories (a)–(c) in [2] above, which were causing a persistence or resurfacing of the psychological injury sustained at Cromer.[3]
[3] Reasons, [83].
The Principal Member then stated, “[t]hat leaves the events in 2021 as being the whole or predominant cause of the psychological injury”.[4] These events included the sending of an email by the appellant’s Secretary at 10.52 am on 27 August 2021 (the August email)[5] advising “[a]ll school-based staff”:
(a) of an expected announcement that day by the Premier relating to the COVID pandemic that, in order “to allow for a safe return to face-to-face learning under the roadmap, NSW Health has advised that by 8 November all NSW public school and preschool staff will be required to be fully vaccinated”, and
(b) “today, the Premier is expected to announce that – as with the aged care and health sectors – mandatory double doses of vaccinations will be required for all public school staff and preschool staff from 8 November” (this email is also noted in Secretary, Department of Education v Dawking.[6]
[4] Reasons, [84].
[5] Appellant’s Reply to Application to Resolve a Dispute (reply), pp 38–40.
[6] [2024] NSWCA 4 (Dawking), [4].
The 2021 events also included an email from the appellant’s Deputy Secretary dated 2 September 2021 (the 2 September email)[7] sent to all school-based staff providing an update on mandatory vaccinations by 8 November 2021, which included “What you need to know … From 8 November all NSW school and preschool staff will be required to have received two doses of COVID-19 vaccination”.
[7] Reply, pp 41–43.
The Principal Member found the whole or predominant cause of the injury “was as a result of the requirement as a teacher to be vaccinated”, and to this extent the appellant agrees. However, she also found “this [does] not fall within any of the … matters in s 11A [of the 1987 Act, including] … discipline or dismissal”, and that the appellant failed to establish a defence under s 11A.[8] The appellant challenges this determination.
[8] Reasons, [92].

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents, and the submissions that the appeal can be determined on the basis of these documents, I am satisfied I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course.

THRESHOLD MATTERS

There is no dispute that the threshold requirements as to quantum and time pursuant to subss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE PRINCIPAL MEMBER’S REASONS

The Principal Member noted Mr Willow relevantly submitted that the August and 2 September emails only encouraged staff to be double vaccinated, acknowledging it would be “challenging for some staff”, but the terms of the emails do not fall within s 11A(1). Mr Willow saw his general practitioner (GP), Dr Charles Rhee, five days later complaining of a worsening of the psychiatric condition, before any “discipline” was proposed by the appellant.[9]
[9] Reasons, [21]–[22].
The Principal Member noted the appellant submitted Mr Willow stated[10] that the announcement of the mandated COVID-19 injections on 27 August 2021 worsened his psychological condition, and that Mr Willow saw Dr Rhee on 30 August 2021 who recorded him telling Dr Rhee that when he was offered the Pfizer vaccine, he did not want to submit to the “tyrannical government forcing people to undergo an invasive procedure against their wishes”. He then asked Dr Rhee to provide him with a medical contraindication certificate which the doctor refused.
[10] Application to Resolve a Dispute (ARD), p 3, [20].
The Principal Member noted the appellant submitted that Mr Willow consulted Dr Rhee next on 6 September 2021, had not shown any psychological symptoms in the meantime, spoke to Dr Rhee about taking alternate medications, was told there was no evidence of their efficacy or safety, and the record of Dr Rhee noted that Mr Willow disagreed and said he would not have the vaccine even if he “gets fired”.
The Principal Member noted the appellant’s submission that as Mr Willow’s condition worsened at this time, the “undeniable conclusion” is that the appellant’s vaccination mandate was the predominant cause of the development of his condition in 2021, more likely leading up to November 2021.
The Principal Member noted the appellant submitted that Dr Paul Wood, Executive Director, Educational Standards NSW Department of Education (Dr Wood), made a written statement dated 31 May 2002[11] which “sets out the steps … taken by the government and then by the [appellant] in relation to the requirement that people be vaccinated”[12] and “none of the emails attached to Dr Wood’s statement … could be viewed as bullying or imposing unreasonable requirements upon teachers”.[13]
[11] Appellant’s Application to Admit Late Documents (AALD) 14 November 2022, pp 1–5.
[12] Reasons, [33].
[13] Reasons, [37].
The Principal Member noted the appellant submitted that Dr Iftikhar Ahmad, consultant psychiatrist retained by the appellant, opined that Mr Willow was suffering adjustment disorder and “development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s)”,[14] and the evidence shows the stressor occurred in late 2021, and that Dr Ahmad said (in response to question 3.1 posed by the appellant):
“[Mr Willow] did sustain a psychological injury in … his employment, however he was suffering from psychological distress already due to on-going issues with the workplace … but able to continue his work. It was the COVID vaccine mandate which affected his psychological health the most and he still has concerns about same”.[15]
[14] Appellant’s AALD 14 November 2022, p 93.
[15] Appellant’s AALD 14 November 2022, p 94.
The Principal Member noted the appellant’s submission that Dr Ahmad said (in response to question 3.5 posed by the appellant) the whole or predominant cause of Mr Willow’s condition was reasonable action taken or proposed to be taken by the employer “with respect [to] discipline … in particular the employer’s actions in implementing the … mandate from August 2021 …”.[16]
[16] Appellant’s AALD 14 November 2022, p 95.
The Principal Member then noted the submissions for Mr Willow in reply, starting with Dr Ahmad’s comments (at [15] above) needing to be seen in the context of the question he was asked by the appellant, as he only “repeats back” question 3.5 and does not reason how “discipline, dismissal …” play a role in understanding the cause of the injury, nor does he take into account his response to question 3.1.
Mr Willow submitted that Dr Rhee’s August 2021 notes show nothing which fell within s 11A(1). The appellant had not then yet mentioned anything about discipline or termination by the time of the 2 September email, and was telling staff that from late November 2021, all school and preschool staff will be required to have had two doses of the vaccine, strongly encouraging staff to have the vaccine before 25 October 2021 to support a staged return of students to schools.
The Principal Member noted Mr Willow’s submission that the 2 September email also gave information about where to get the vaccine and that “all the contents were messages of encouragement … no threats or suggestions of consequences”.[17]
[17] Reasons, [48].
It was submitted for Mr Willow that when he saw Dr Rhee on 7 September 2021 there was no action falling within s 11A by the employer, with Dr Rhee recording:
“Pt has been feeling anxious and depressed esp since the announcement that all teachers needed to get the vaccine by November, otherwise they cannot return to work. Even before that – was feeling some stress and anxiety but much worse since this announcement
Pt feels he can’t really enjoy anything … is fearful he will lose his job … feels this is a coercive threat from the government and it is affecting him a lot … Lately – unable to sleep normally … Waking 3–4 times a night … Feels anxious and agitated … Can still do his job well … Still teaching classes via Zoom … feels it will get worse as he is getting closer to 8/11/21 which is the deadline set by the government
K10 - 41/50
… agreed he has acute stress reaction due to the government mandate, on the background of his depression/anxiety … feels his thoughts on the vaccine is irrelevant, as his distress is because of the coercion”.[18]
[18] ARD, p 288.
The Principal Member noted it was put that the appellant had not then suggested any discipline or termination if staff did not get vaccinated. Mr Willow may have speculated about this, but there was no action by the appellant falling within s 11A.
The Principal Member then noted the employer made further submissions, that s 11A refers to “… reasonable action taken or proposed to be taken”, arguing that because Mr Willow had told Dr Rhee in September 2021 he feared his employment would be terminated, “the question of discipline was well and truly in play” – referring to Webb v State of New South Wales[19] where Wood DP stated that “the authorities [in Northern NSW Local Health Network v Heggie[20] and Department of Education and Training v Sinclair[21]] … require the whole process involved in the employer’s action to be taken into account in the assessment of whether that action constituted ‘discipline’”. The Principal Member noted the appellant’s submission that the process started in August 2021, was related to discipline and related to dismissal or the possibility of dismissal.
[19] [2019] NSWWCCPD 50 (Webb), [139].
[20] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[21] [2005] NSWCA 465; 4 DDCR 206 (Sinclair).
The Principal Member noted Mr Willow’s further submission that the appellant’s point about “the process of discipline and how long it runs for, involved an investigation”, and saying Mr Willow’s situation “is different in character to an announcement by a Minister or a head of a department which applies to everyone”.[22]
[22] Reasons, [52]; transcript of proceedings 12 April 2023 (T), T53.22–26.
The Principal Member said there were no entries relating to psychological matters in the records of Dr Rhee between 17 October 2018 and 30 December 2020, and the next relevant entry was on 30 August 2021. She also summarised his 6 September 2021 record and added that Mr Willow asked for a meeting the following day to obtain a GP mental health referral. Dr Rhee noted “[Mr Willow] agreed he might have a psychological issue that makes him get very anxious of the vaccine and when people are making him do something”.[23]
[23] Reasons, [62].
The Principal Member then set out the record of Dr Rhee’s 7 September 2021 consultation with Mr Willow. She also added to the note quoted at [20] above:
“diagnosis: acute stress reaction on background of past history of anxiety/depression. Presenting issues are … ‘stress, feeling agitated, anxious, frequently waking up from sleep’ … mandate that all teachers must be vaccinated against COVID-19”.[24]
[24] Reasons, [64] citing ARD, pp 196–197.
The Principal Member noted that Dr Rhee reported to Mr Willow’s solicitors on 12 July 2022, advising he had been Mr Willow’s doctor since 2013, and was consulted by Mr Willow on 30 August 2021. The Principal Member noted Dr Rhee said in this report that Mr Willow had told him he was fearful he would lose his job, he did not wish to be forced to receive the vaccine against his wishes, and subsequently started to feel depressed and anxious, experiencing anhedonia, sleep disturbances, agitation and anxiety, helplessness and panic attacks. The Principal Member also noted Dr Rhee said those symptoms were continuing and that he had provided a referral for Mr Willow to see a psychologist on 7 September 2021 and a psychiatrist on 21 September 2021.[25]
[25] Reasons, [66].
The Principal Member then noted an opinion from Dr Rastogi in a forensic report obtained by Mr Willow’s solicitors dated 26 July 2022, who outlined a brief history of the events in 2015 leading up to treatment by Dr Henson, a psychiatrist, in 2018, and the granting of a compassionate transfer to CHS at the start of 2019, and noting Mr Willow’s statement, including his belief that staff at CHS “were already advised he was a compassionate transfer and assumptions were made he was a troublemaker and his reputation was tarnished. He said he felt unwanted and developed paranoia”.[26]
[26] Reasons, [69].
The Principal Member then noted that Dr Rastogi dealt “with the 2021 events in quite a broad brush approach whereas the respondent’s counsel, Mr Moffet, broke down the events surrounding the mandate step by step and submitted that the psychological injury developed before Mr Willow was told he faced discipline or dismissal”.[27]
[27] Reasons, [70].
The Principal Member noted she did not summarise Mr Willow’s various statements and annexures to the first statement, as both counsel had only referred to the relevant parts in submissions, and she had summarised those submissions. She said she still “spent some time setting out the attendances on Dr Rhee … because the main dispute in this case relates to what factors were causative of Mr Willow sustaining a psychological injury” (emphasis added).[28]
[28] Reasons, [73].
There is no complaint about this approach and the adequacy of those summaries. Also, the issues between the parties have been further refined on appeal. This refinement, by the Principal Member and both counsel, make it unnecessary for me to summarise the full extent of those statements and annexures as well.
The Principal Member noted that “Mr Willow contends a broader range of factual scenarios caused his psychological injury going back to events in 2015, whereas the [appellant] argues it was the requirement to be vaccinated for COVID-19”. She then noted the facts were more “nuanced” as even if one focused only on the 2021 actions, Mr Willow developed a psychological injury by September 2021 when the appellant “had not raised anything about discipline or dismissal”.[29]
[29] Reasons, [74]–[75].
The Principal Member then said “the [appellant] also seems to date the psychological injury from this time but argues this was part of the disciplinary process”.[30] There is also no criticism or challenge from the appellant about her understanding in this respect.
[30] Reasons, [75].
The Principal Member said that she found the evidence of Dr Rhee “most relevant” because he had been Mr Willow’s GP since 2013, and this “put him in a superior position in terms of … witnessing [his] mental health over the years than either of the two medico-legal specialists notwithstanding they are psychiatrists”. She also accepted the appellant’s submission “that to some extent Mr Willow’s statements are not sufficiently precise to be useful to determine the causative events” but that Dr Rhee “provided very detailed and careful notes and his progress notes do provide an accurate account of Mr Willow’s presentation over many years”.[31]
[31] Reasons, [76].
The Principal Member acknowledged “that it is difficult in psychological injury cases to tease out the causative factors”, and that Dr Rastogi “does lend support to the proposition that it was Mr Willow’s accumulated experience with the [appellant] and the vaccine mandate was the final straw”.[32]
[32] Reasons, [79].
The Principal Member also acknowledged the principles discussed in Hamad v Q Catering Limited[33] regarding the need to consider medical evidence in determining causation issues under s 11A, with the extent of such need depending on the facts and circumstances of each case. But she said she could not accept Dr Rastogi’s opinions in this regard as they were not detailed enough to relevantly assist.[34]
[33] [2017] NSWWCCPD 6 (Hamad).
[34] Reasons, [81].
The Principal Member then said she could not find there were real events between 2019 and up to 2021 occurring which were causing a persisting or resurfacing of Mr Willow’s earlier psychological injury and that this analysis “leaves the events in 2021 as being the whole or predominant cause of the psychological injury”. She then found that Mr Willow’s argument was “persuasive that the psychological injury was caused by the requirement to be vaccinated”. She then also accepted Mr Willow’s submission that he sustained “psychological injury before the [appellant] ever advised that there would be disciplinary steps taken or dismissal if teachers did not get double vaccinated”.[35]
[35] Reasons, [83]–[86].
The Principal Member said she did not accept the appellant’s point, based on Webb, that the whole process was one of discipline, finding the facts of Webb different and that “these cases are fact sensitive”. She noted Mr Willow’s submission that “the first series of emails … were couched in terms of encouragement, to persuade teachers to get vaccinated, to give them information where to obtain it etc”, and it was not until “months later that discipline and dismissal were raised, and before then Mr Willow clearly was unwell psychologically”.[36]
[36] Reasons, [87].

The Principal Member pointed to 7 September 2021 as the time when Dr Rhee undertook the mental health plan for Mr Willow, referring to “diagnosis: acute stress reaction on background of past history of anxiety/depression. Presenting issues are … ‘stress, feeling agitated, anxious, frequently waking up from sleep’”. She also noted “… government mandate that all teachers must be vaccinated against COVID-19” as relevant information. She then found “this plan, and the corresponding clinical entry, to be significant because they demonstrate how ill Mr Willow had become psychologically and he was referred for treatment”.[37]
[37] Reasons, [88]–[89].
The Principal Member noted the appellant’s point that “Mr Willow told the doctor that he was fearful of losing his job, and he was prepared to be fired, as raising the elements in s 11A of discipline and dismissal”, but then said:
“… the fact that [he] was worried about his employment does not equate to actions being taken by the employer to discipline or terminate him … at this time, when Mr Willow developed his injury the [appellant] had not taken such action. It was an evolving and fast changing situation. It may well have been … that the danger with the virus could have passed or the [appellant] may have chosen different options to deal with the situation. I find one cannot judge the actions of the employer by what happened subsequently and treat it as a foregone conclusion that discipline or dismissal would have occurred. There is a need to judge what were the actions of the employer that caused the … injury and I find … it was the mere fact that he was told he was required to be vaccinated. As noted by Dr Rhee [on] 6 September 2021 ‘he agreed he might have a psychological issue that makes him get very anxious of the vaccine and when people are making him do something’”.[38]
[38] Reasons, [90].
The Principal Member then found that Dr Ahmad’s evidence at question 3.1 (see [15] above) supported such a view as he said: “It was the COVID vaccine mandate which affected his psychological health the most”. The Principal Member also accepted Mr Willow’s submission in relation to Dr Ahmad’s answer to question 3.5 (see [16] above), as doing “no more than parrot back the question and, as such, [providing] no assistance to determine what was the whole or predominant cause such as discussed in Hamad”.[39]
[39] Reasons, [91].

GROUNDS OF APPEAL

The appellant employer brings four grounds of appeal, as follows:
(a)    Ground 1 – error of fact in finding the worker suffered injury before a disciplinary process commenced and was therefore outside the scope of a defence pursuant to s 11A of the 1987 Act.
(b)    Ground 2 – error of fact and law in finding (at [86]) it was necessary that advice of any disciplinary action be given to the worker before the appellant’s directives from August 2021 could be considered to be disciplinary within s 11A (1) of the 1987 Act.
(c)    Ground 3 – error of fact in finding (at [87]) that it was not until “months after” the worker was injured that issues of discipline or dismissal were raised.
(d)    Ground 4 – error in fact and law in rejecting (at [87]) the appellant’s submission that the whole process involved in the appellant’s actions relating to the worker being required to be vaccinated should be taken into account in the assessment of whether its actions constituted “discipline” for the purposes of s 11A of the 1987 Act.

RELEVANT APPEAL PRINCIPLES

In Raulston v Toll Pty Ltd,[40] Roche DP considered the principles (drawn from Whiteley Muir & Zwanenberg Ltd v Kerr[41]) relevant to interfering with a primary decision and noted:
“…
(a)    [A Member], though not basing … 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 … [her] conclusion was wrong’.
(b)    Having found the primary facts, the [Member] may draw a particular inference from them. Even here ‘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’”.
[40] [2011] NSWWCCPD 25.
[41] (1966) 39 ALJR 505, 506.
In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd,[42] Allsop J (as the Chief Justice then was, with Drummond and Mansfield JJ agreeing) stated:
“in … 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’”.
[42] [2001] FCA 1833.

LEGISLATION

The terms of s 11A(1) of the 1987 Act relevantly provide:
“No compensation is payable … in respect of … 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 … discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

SUBMISSIONS

As to Ground 1

The appellant submits the Principal Member’s finding (at [85], sic [86]) that the worker had not been told, at the time he was injured, there would be disciplinary steps taken if he was not vaccinated, was an erroneous factual finding “and was central to the decision”. The employer says this also overlooks the pleaded date of injury, 8 (sic, 5) November 2021, not being in dispute.
The appellant says if Mr Willow had not been required to be vaccinated, he would have not likely been concerned about vaccination. That the vaccination was mandatory or likely to be so led directly to him suffering injury. If the employer’s “directive” had been discretionary, he would likely not have been concerned about vaccination. “Mandatory”, in the context here, means compulsory or obligatory.
The appellant says Mr Willow was aware of his position regarding vaccination by 27 August 2021, Dr Rhee’s note of 30 August 2021 confirms he knew by then, it was likely there would be mandatory vaccination by 8 November 2021, and he would be unable to continue teaching if unvaccinated. That was the penalty for non-compliance.
The appellant also says the Principal Member overlooked material facts or afforded them too little weight before reaching that conclusion that the worker suffered injury before a disciplinary process commenced. No conclusion, other than the disciplinary processes had commenced by 27 August 2021, could be reached given the evidence.
The respondent says much of the appellant’s submissions were essentially the same as those put to and rejected by the Principal Member, and also that the intention of the mandate announcement was to provide “a safe return to face-to-face learning”, with there being no evidence in the mandate or the surrounding communications of an intention, or proposal, to discipline workers for refusing to become vaccinated.
It is unnecessary to otherwise fully detail the submissions for the respondent except to say that they mainly develop the summary in the preceding paragraph and the summary as to Ground 4 at [55] below. In short, the respondent says that the particular facts of his case do not bring s 11A into play.

As to Ground 2

The appellant says its advice to Mr Willow on 27 August 2021, before he was injured, included “today the Premier is expected to announce that … mandatory double doses of vaccinations will be required for all public school and preschool staff from 8 November 2021”, and the obvious inference was that the failure to follow that requirement would have consequences and that disciplinary action would likely follow, which is sufficient to enliven s 11A(1); and to find a specific penalty needs to be advised before the actions of the appellant could be considered to be disciplinary is an error of law. The appellant also says the finding that the worker was not advised was an error of fact, as Mr Willow is an intelligent man; it was unnecessary to tell him there would be repercussions if he remained unvaccinated.

As to Ground 3

The appellant repeated submissions as to Grounds 1 and 2 and says that issues of discipline were clearly conveyed to the worker as early as 27 August 2021 or at the latest by 2 September 2021: the emails sent to the worker and other teachers on these days were titled “Update on mandatory vaccinations”. The 2 September 2021 email from the employer informed the worker that “[a]ll staff will be required to be vaccinated unless they are medically exempt from having one” and “ensure you are fully vaccinated before 8 November [2021]”.

As to Ground 4

The appellant noted that the Principal Member found the presenting facts did not establish directives relating to discipline or dismissal until after the worker suffered injury, and the “whole process” had not commenced before then. The appellant says the worker did not argue at the hearing that a failure to be vaccinated would constitute “discipline” within the meaning of the section; he argued the process had not commenced until after he was injured, and this argument was accepted.
The appellant says the “whole process” started as early as 27 August 2021; being the steps taken in requiring Mr Willow and his fellow teachers be vaccinated before they could enter a school to teach. The August and 2 September emails were part of that disciplinary process. To find the process did not commence until the employer “specifically” informed the worker as to what the penalty would be if he remained unvaccinated is an error of law, and to find that a disciplinary process did not commence before the worker was injured is an error of fact, as such conclusion ignores the mandatory nature of the vaccination requirement. This was erroneous because it overlooked material facts or afforded them too little weight.
The respondent says that any action by the employer with respect to discipline was merely “potential” rather than proposed and that it could not be said that the announcement of the mandate was part of the beginning of any disciplinary process.

DISCUSSION

GIVEN THE WAY THE PRINCIPAL MEMBER DEALT WITH THE CASE AND THE PARTIES HAVE PUT THEIR RESPECTIVE CASES ON APPEAL, A CRUCIAL QUESTION IS WHETHER THE APPELLANT’S ACTIONS BETWEEN LATE AUGUST AND EARLY SEPTEMBER 2021 CAN BE CHARACTERISED AS ACTION “WITH RESPECT TO … DISCIPLINE …” WITHIN THE MEANING OF S 11A(1). THE PARTIES HAVE MAINLY APPROACHED THIS QUESTION, BOTH BEFORE THE PRINCIPAL MEMBER AND ON APPEAL, ON THE BASIS OF WHETHER THE FACTUAL CIRCUMSTANCES OF THE ACTIONS TAKEN BY THE APPELLANT CAN BE CHARACTERISED AS BEING WITH RESPECT TO DISCIPLINE OR DISMISSAL.
THE appellant HAS CITED HEGGIE AND SINCLAIR IN SUPPORT OF THE PROPOSITION THAT MR WILLOW’S VACCINATION REQUIREMENT “WAS PART OF A PROCESS THAT CONSTITUTED ‘DISCIPLINE’ WITHIN THE MEANING OF S 11A(1)”, THE “WHOLE PROCESS” POINT IN GROUND 4. AS SUCH, I TAKE INTO ACCOUNT THE CONSTRUCTION OF S 11A BY SPIGELMAN CJ (IN SINCLAIR, SUMMARISED BY SACKVILLE AJA IN HEGGIE) AS A “BROAD VIEW” OF THE EXPRESSION “ACTION WITH RESPECT TO DISCIPLINE” AND WHICH “IS CAPABLE OF EXTENDING TO THE ENTIRE PROCESS INVOLVED IN DISCIPLINARY ACTION, INCLUDING THE COURSE OF AN INVESTIGATION”. OTHERWISE, NEITHER PARTY HAS RAISED THE PROPER CONSTRUCTION OF S 11(A) AS AN ISSUE. IT IS THUS UNNECESSARY FOR ME TO UNDERTAKE THAT EXERCISE (E.G. DAWKING AT [72]–[74]).
IT IS CONVENIENT TO DEAL WITH GROUNDS 1 AND 4 TOGETHER AS THEY OVERLAP SUBSTANTIALLY. GROUND 1 ALLEGES THE FINDING OF THE INJURY BEING SUSTAINED BEFORE A DISCIPLINARY PROCESS COMMENCED, AND THUS OUTSIDE THE RELEVANT TERMS OF S 11A, WAS AN ERROR OF FACT. THE FIRST SUPPORTING SUBMISSION OF THIS POINTS TO REASONS [85] (SIC, [86]), SAYING THE PRINCIPAL MEMBER ERRED BY FINDING MR WILLOW HAD “AT THE TIME THAT HE WAS INJURED, NOT BEEN TOLD THAT THERE WOULD BE DISCIPLINARY STEPS TAKEN IF HE WAS NOT VACCINATED”.[43] THIS SUBMISSION IS NOT CLEAR, AS TO WHETHER IT IS BROADER THAN ALLEGING ERROR ONLY BECAUSE SHE MISTAKENLY THOUGHT MR WILLOW NEEDED TO BE “TOLD” OF DISCIPLINE BEFORE IT COULD BE CHARACTERISED AS ACTION WITH RESPECT TO DISCIPLINE. IF SO, THAT POINT IS MORE CLEARLY ALLEGED IN GROUND 2 AND WILL BE DEALT WITH THERE.
[43] Appellant’s submissions, [14].
THE next RELEVANT SUBMISSION SUPPORTING GROUND 1 IS THAT THE PRINCIPAL MEMBER (AT [86]) OVERLOOKED “THE [W]ORKER’S PLEADED DATE OF INJURY, BEING 8 [SIC, 5] NOVEMBER 2021”.[44] THIS SUBMISSION HAS NOT BEEN DEVELOPED. HOWEVER, I DISAGREE THAT THIS WAS OVERLOOKED. THE PRINCIPAL MEMBER NOTED THAT MR WILLOW RELIED ON A DEEMED DATE OF INJURY, 5 NOVEMBER 2021, WHEN HE WENT OFF WORK ON SICK LEAVE, AND THAT THIS WAS THE DATE FROM WHICH THE WEEKLY COMPENSATION PAYMENTS WERE CLAIMED.[45] SHE DID NOT INTERFERE WITH THAT “PLEADED DATE”. THIS IS CONSISTENT WITH THE APPELLANT’S VERY LATE CONCESSION ABOUT THE RELIANCE ON SS 4 AND 9A UP TO THEN.[46] THAT CONCESSION WAS NOT DETAILED, BUT THE CLEAR INFERENCE IS THAT IT WENT TO THE ALLEGATION IN THE ARD: A DISEASE INJURY DEEMED TO HAVE OCCURRED ON 5 NOVEMBER 2021.
[44] Appellant’s submissions, [15].
[45] Reasons, [4].
[46] T9.29.
IF THE appellant IS IN FACT PURSUING THIS POINT, AND THIS IS UNCLEAR, IT FAILS TO ACKNOWLEDGE THE NATURE OF THE CAUSATION ANALYSIS THE PRINCIPAL MEMBER WAS UNDERTAKING. IT WAS NOT FOR THE PURPOSES OF SS 4 OR 9A. THAT WAS AGREED. IT WAS A DIFFERENT ANALYSIS FOR THE PURPOSE OF S 11A(1). THIS WAS NECESSARY GIVEN THE WORDS “WHOLLY OR PREDOMINANTLY CAUSED BY REASONABLE ACTION” (EMPHASIS ADDED) IN THAT SECTION. SNELL DP POINTED OUT IN FLANAGAN V NSW POLICE FORCE:[47]
“… THAT THE ARBITRATOR CONFLATED THE TESTS PURSUANT TO SS 4 (B) AND 11A(1) … IN A CASE WHERE S 11A(1) … IS RAISED AS A DEFENCE, IT IS NECESSARY THAT THE ISSUE OF WHETHER A WORKER HAS PROVED ‘INJURY’, WITHIN THE MEANING OF S 4, BE DEALT WITH INITIALLY. IT IS ONLY IF ‘INJURY’ IS ESTABLISHED, THAT IT IS THEN NECESSARY TO CONSIDER WHETHER S 11A(1) PROVIDES THE EMPLOYER WITH A DEFENCE (MANLY PACIFIC INTERNATIONAL HOTEL V DOYLE [1999] NSWCA 465; 19 NSWCCR 181 AT [4]). IN A CLAIM INVOLVING THE ‘DISEASE’ PROVISIONS … THE TEST TO ESTABLISH INJURY … IS DIFFERENT TO THE CAUSATION ISSUE … IN S 11A(1) … THE ARBITRATOR’S REASONS DEALING WITH ‘INJURY’ … INTERSPERSED REFERENCES TO WHETHER … EVENTS, POTENTIALLY RELEVANT TO ‘INJURY’, MIGHT BE SUBJECT TO THE PROVISIONS OF S 11A IN ANY EVENT … THE TWO ISSUES, ‘INJURY’ AND THE CAUSATION TEST IN S 11A(1), ARE DIFFERENT, AND NEED TO BE CONSIDERED SEPARATELY”.
[47] [2017] NSWWCCPD 33, [81].
IN MR Willow’s CASE, THERE IS ALSO NO CONTRADICTION BETWEEN THE AGREED DEEMED DATE OF INJURY FOR THE PURPOSES OF SS 4(B) AND 9A. THE FINDING THAT HE “DEVELOPED HIS INJURY”[48] BY 7 SEPTEMBER 2021 WAS FOR THE SPECIFIC PURPOSES OF THE S 11A DEFENCE, WHICH WAS ULTIMATELY THE ONLY ISSUE IN THE CASE. IN THE CIRCUMSTANCES OF MR WILLOW’S CASE, THE DEEMED DATE (5 NOVEMBER 2021) OF A DISEASE INJURY DOES NOT SHUT OUT A FINDING OF THE INJURY HAVING DEVELOPED EARLIER. IT IS STILL THE ONE PSYCHOLOGICAL INJURY WITH THE ONE DATE OF (DEEMED) INJURY. A DEEMED INJURY DATE HAS SPECIFIC AND LIMITED FUNCTIONS AS EXPLAINED BY ROCHE DP IN COLLINGRIDGE V IAMA AGRIBUSINESS PTY LTD[49] WHO SET OUT THE RELEVANT AUTHORITIES AS FOLLOWS:
[48] Reasons, [90].
[49] [2011] NSWWCCPD 31, [63]–[67].
“63.   THE OBJECTS OF THE DISEASE PROVISIONS WERE EXPLAINED BY KIRBY P … IN GRATE LACE [GRATE LACE PTY LTD T/AS GRATE LACE BRICKLAYING CO V THEISS WATKINS WHITE (CONSTRUCTIONS) PTY LTD (1995) 12 NSWCCR 365 (GRATE LACE)] TO BE …
‘·      TO AVOID UNNECESSARY LITIGATION;
·TO SIMPLIFY THE ASSIGNMENT OF LIABILITY;
·TO REMOVE THE HIGHLY DISPUTATIOUS DEBATE ABOUT ‘TRUE’ CAUSATION; AND
·TO FIX THE LAST RELEVANT EMPLOYER WITH THE PRIMARY LIABILITY (SUBJECT TO THE LIMITED CONTRIBUTION RIGHT PROVIDED IN SECTION 15 (2)).’
64.    PRIESTLEY JA ALSO TOUCHED ON THE PURPOSE OF THE DISEASE PROVISIONS IN ALFONZO [P & O BERKELEY CHALLENGE PTY LTD V ALFONZO [2000] NSWCA 214]. HIS HONOUR SAID, AT [26] AND [27]:
‘26.BECAUSE SOME S 4(B)(I) DISEASE INJURIES ARE CONTRACTED BY A GRADUAL PROCESS WHICH CAN CAUSE DIFFICULTIES IN ESTABLISHING THE DATE OF INJURY, S 15 SPECIFIES DEFINED TIMES AT WHICH SUCH INJURIES ARE DEEMED TO HAVE HAPPENED. SECTION 16 SERVES THE SAME FUNCTION IN REGARD TO S 4(B)(II) AGGRAVATION DISEASE INJURIES. BOTH SECTIONS ALSO NOMINATE WHICH EMPLOYER, IF THE WORKER HAD MORE THAN ONE DURING THE PROGRESS OF THE DISEASE, IS LIABLE TO PAY COMPENSATION, AND, IN CERTAIN CASES, REGULATE THE ENTITLEMENT OF THE LIABLE EMPLOYER TO OBTAIN CONTRIBUTIONS FROM FORMER EMPLOYERS.
27.SECTIONS 15 AND 16 REDUCE THE NEED TO ANALYSE IN DETAIL AT WHAT STAGE IN THE GRADUAL PROCESS OF DISEASE INJURIES THE STAGE OF AN INJURY, OR INCAPACITY, FOR THE PURPOSES OF THE ACT, HAS BEEN REACHED. THE PRICE PAID FOR THIS IS THE IMPOSITION OF RULES WHICH CANNOT ALTOGETHER ELIMINATE SOME ARBITRARINESS IN THEIR OPERATION’.
65.    … THE RIGHT TO COMPENSATION UNDER THE 1987 ACT ONLY ARISES IF A ‘WORKER’ HAS RECEIVED ‘AN INJURY’ … ARISING OUT OF OR IN THE COURSE OF HIS OR HER EMPLOYMENT … TO WHICH EMPLOYMENT WAS A SUBSTANTIAL CONTRIBUTING FACTOR … THE RIGHT TO WEEKLY COMPENSATION ONLY ARISES IF INCAPACITY FOR WORK … RESULTS FROM THE INJURY …
66.    THE COMMISSION DETERMINES WHETHER A WORKER HAS RECEIVED ‘AN INJURY’ BY APPLYING S 4, NOT S 15 OR S 16. MAHONEY AP EXPLAINED THIS POINT IN CRISP [CRISP V CHAPMAN (1994) 10 NSWCCR 492]. IN THAT CASE, IT WAS SUBMITTED THAT THE WORKER’S CASE HAD BEEN PRESSED ON TWO ALTERNATIVE BASES: ‘THE SECTION 15 BASIS AND THE SECTION 16 BASIS’. IN RESPONSE TO THAT SUBMISSION, HIS HONOUR SAID (AT 495):
‘IT IS, I THINK, A CONFUSION TO TREAT SECTION 15 OR SECTION 16 … AS, IN THE SENSE HERE RELEVANT, CREATING LIABILITY FOR COMPENSATION. IN GENERAL, EACH OF THE SECTIONS ASSUMES THAT AN INJURY HAS OCCURRED AND EACH PROVIDES THE MEANS OF DETERMINING WHEN THE INJURY IS DEEMED TO HAVE HAPPENED, BY WHOM COMPENSATION IS PAYABLE, AND OTHER ANCILLARY MATTERS. IN PRINCIPLE, IT REMAINS FOR THE WORKER TO PROVE THAT AN INJURY HAS OCCURRED … TO PROVE THAT, IT IS NECESSARY FOR THE WORKER TO PROVE THE ‘HAPPENING’ OF AN INJURY WITHIN SECTION 4. HOWEVER, SECTION 15 APPLIES ESSENTIALLY IN THE CASE OF AN INJURY OF THE SECOND KIND TO WHICH I HAVE REFERRED [A WORK-CAUSED DISEASE] AND SECTION 16 TO AN INJURY OF THE THIRD KIND [A WORK-AGGRAVATED DISEASE]. IT IS, THEREFORE, NO DOUBT CONVENIENT TO REFER TO INJURIES OF THOSE KINDS AS CASES WITHIN SECTION 15 AND SECTION 16 RESPECTIVELY. HOWEVER, IT IS NECESSARY IN DOING SO TO RECALL THAT ESSENTIALLY THE INJURIES ARE THOSE PROVIDED FOR IN SECTION 4.’
67.    THIS PASSAGE IS CONSISTENT WITH THE STATEMENT BY HODGSON JA (IPP JA AND HOEBEN J AGREEING) IN GALES V LOVETT, MCCRACKEN & BRAY [2008] NSWCA 171 AT [31] THAT ‘ANTAW [ALTO FORD PTY LTD V ANTAW [1999] NSWCA 234] DOES NOT SUPPORT A PROPOSITION THAT S 15(1)(B) CAN IN EFFECT CREATE AN INJURY, SIMPLY BY DEEMING AN INJURY TO HAVE OCCURRED ON A PARTICULAR DATE’. IT IS ALSO CONSISTENT WITH POWELL JA’S STATEMENT IN KELLY [KELLY V GLENROC PASTORAL CO PTY LTD (1994) 10 NSWCCR 178], WHERE HIS HONOUR SAID AT 187G:
‘WHILE IT MAY BE THAT TO DESCRIBE A CLAIM WHICH IS AUTHORISED BY THE COMBINED OPERATION OF SECTIONS 4 (‘INJURY’ – (B)(I)),15 AND 33 OF THE ACT IS A CONVENIENT FORM OF LEGAL SHORTHAND, IT SEEMS TO ME THAT, IF THAT BE DONE UNCRITICALLY, AND WITHOUT REGARD TO THE FACT THAT THE SOURCE OF THE RELEVANT WORKER’S ENTITLEMENT IS TO BE FOUND IN THE COMBINED OPERATION OF SECTIONS 4 AND 33 - SECTION 15 BEING PROCEDURAL, OR EVIDENTIARY IN NATURE, IDENTIFYING, FOR THE PURPOSES OF A CLAIM, THE TIME AT WHICH THE INCAPACITY IS TO BE TAKEN AS HAVING ARISEN, AND THE EMPLOYER AGAINST WHOM THE CLAIM MAY BE MADE – ONE IS APT TO BE LED INTO CONFUSION OF THOUGHT’.”

THE above PRINCIPLES MAKE IT CLEAR THAT IN THE PARTICULAR CIRCUMSTANCES OF MR WILLOW’S CASE, THE PRINCIPAL MEMBER WAS NOT LOCKED INTO CONSIDERING THE S 11A CAUSATION ISSUE ON THE BASIS OF THE INJURY BEING CAUSED ON 5 NOVEMBER 2021. HER TASK, RELEVANTLY, WAS TO FIND WHETHER OR NOT IT WAS SHOWN THAT THE PSYCHOLOGICAL INJURY WAS WHOLLY OR PREDOMINANTLY CAUSED BY ACTION TAKEN OR PROPOSED TO BE TAKEN WITH RESPECT TO DISCIPLINE AND IN GOING ABOUT THAT TASK, IT WAS AT LEAST OPEN TO HER TO IDENTIFY WHAT KIRBY P DESCRIBED (IN GRATE LACE) AS “TRUE” CAUSATION – RATHER THAN DETERMINE THE SUBSTANTIVE ISSUE IN THE CASE BY NECESSARILY USING A DATE OF INJURY WHICH IS DEEMED FOR LIMITED PURPOSES.
THE APPELLANT’S SUBMISSIONS ARGUE THE MANDATORY REQUIREMENT FOR MR WILLOW TO BE VACCINATED CAUSED THE INJURY.[50] BUT THE PRINCIPAL MEMBER HAD ALREADY FOUND THIS (AT [84], [90], AND [92]). HER DISAGREEMENT WITH THE APPELLANT’S SUBMISSIONS RATHER, AND ESSENTIALLY, WENT TO WHETHER THE ACTION BEING TAKEN, OR PROPOSED TO BE TAKEN, WAS WITH RESPECT TO DISCIPLINE. THE APPELLANT HAS REPEATEDLY EMPHASISED THE MEANING OF “MANDATORY”, AND THAT MR WILLOW WELL KNEW IT APPLIED TO THE VACCINATION.[51] BUT THE PRINCIPAL MEMBER DID NOT FIND OTHERWISE. SHE FOUND “THE WHOLE OR PREDOMINANT CAUSE OF THE PSYCHOLOGICAL INJURY WAS … THE REQUIREMENT AS A TEACHER TO BE VACCINATED”; BUT THAT THIS DID NOT “FALL WITHIN ANY OF THE LIST OF MATTERS IN S 11A”; IN PARTICULAR, “DISCIPLINE” (OR “DISMISSAL”).[52]
[50] Appellant’s submissions, [16]–[17].
[51] Appellant’s submissions, [18]–[21].
[52] Reasons, [92].
THE PRINCIPAL MEMBER’S USE OF THE WORD “REQUIREMENT” HAS ESSENTIALLY THE SAME CONTEXTUAL ORDINARY MEANING AS “MANDATORY”. FOR EXAMPLE, SHE FOUND (AT [91]) THE OPINION OF DR AHMAD THAT “IT WAS THE COVID VACCINE MANDATE (EMPHASIS ADDED) WHICH AFFECTED HIS PSYCHOLOGICAL HEALTH THE MOST” WAS SUPPORTIVE OF HER FINDING (AT [90]) THAT “THE ACTIONS OF THE EMPLOYER THAT CAUSED THE PSYCHOLOGICAL INJURY … WAS THE MERE FACT THAT HE WAS TOLD HE WAS REQUIRED TO BE VACCINATED”. THIS FINDING WAS OPEN TO HER, IT WAS MADE WITHOUT ERROR, AND THE APPELLANT HAS NOT ARGUED TO THE CONTRARY.
THE appellant SUBMITS THE “ESTABLISHED FACTS” CONFIRM THAT THE PRINCIPAL MEMBER OVERLOOKED MATERIAL FACTS OR AFFORDED THEM TOO LITTLE WEIGHT IN MAKING THE FINDING THAT THE INJURY WAS SUFFERED BEFORE THE DISCIPLINARY PROCESS COMMENCED.[53] THE SUBMISSION LIMITS THESE “FACTS” TO THE MANDATORY NATURE OF THE VACCINATION (INCLUDING THE AUGUST AND 2 SEPTEMBER EMAILS), THAT MR WILLOW WOULD BE UNABLE TO CONTINUE TEACHING IF HE DID NOT COMPLY, AND THAT IT WAS THE “ADVICE”[54] THAT VACCINATION WAS MANDATORY THAT “LEAD” TO THE INJURY. THE APPELLANT SAYS THAT THE ONLY REASONABLE CONCLUSION FROM THESE FACTS IS THAT “THE DISCIPLINARY PROCESSES” HAD COMMENCED BY 27 AUGUST 2021 AND SO THE PRINCIPAL MEMBER ERRED.[55]
[53] Appellant’s submissions, [22].
[54] Appellant’s submissions, [16].
[55] Appellant’s submissions, [23].
BUT IT IS NOT CLEAR WHAT “DISCIPLINARY PROCESSES” ARE BEING REFERRED TO HERE, EXCEPT THAT MR WILLOW HAD BEEN INFORMED THAT VACCINATION WOULD (IN THE FUTURE) BE MANDATORY, “NON-COMPLIANCE WAS NOT AN OPTION”, AND HE KNEW THIS AT LEAST BY 27 AUGUST 2021. OTHERWISE, THE APPELLANT’S SUBMISSIONS DO NOT ENGAGE WITH OR TAKE ISSUE WITH THE CONTENT OF THOSE EMAILS, NOR THE PRINCIPAL MEMBER’S COMMENTS IN THAT REGARD.
AS PUT FOR MR WILLOW, THE APPELLANT’S SUBMISSIONS IN SUPPORT OF GROUND 1 ARE ESSENTIALLY A RE-RUN OF WHAT WAS PUT TO THE PRINCIPAL MEMBER, WHICH SHE REJECTED. IN MY OPINION, IT WAS OPEN TO HER TO FIND THE FACTS DID NOT CONSTITUTE A DISCIPLINARY process. SHE INDICATED SHE HAD BEEN PERSUADED THAT “THE FIRST SERIES OF EMAILS [CLEARLY MEANING THE AUGUST AND 2 SEPTEMBER EMAILS] … WERE COUCHED IN TERMS OF ENCOURAGEMENT, TO PERSUADE TEACHERS TO GET VACCINATED, TO GIVE THEM INFORMATION WHERE TO OBTAIN IT ETC.”[56]
[56] Reasons, [87].
In SECRETARY,DEPARTMENT OF EDUCATION V UZUNOVSKA,[57] PHILLIPS P DEALT WITH SIMILAR FACTUAL CIRCUMSTANCES, AND THE SAME EVIDENCE IN SOME RESPECTS. MS UZUNOVSKA WAS A TEACHER EMPLOYED BY THE APPELLANT. SHE ALSO HELD STRONG VIEWS AGAINST BEING REQUIRED TO BE VACCINATED WITH THE COVID VACCINE. HIS HONOUR NOTED THE CLINICAL NOTES OF AN ATTENDANCE ON HER GP ON 30 AUGUST 2021 WHEN SHE WAS:
“… 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 … 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 …”.[58]
[57] [2024] NSWPICPD 19 (Uzunovska).
[58] Uzunovska, [53].
ONE OF THE ISSUES IN UZUNOVSKA WENT TO ASPECTS OF WHETHER ACTION TAKEN OR PROPOSED TO BE TAKEN BY OR ON BEHALF OF THE EMPLOYER WAS WITH RESPECT TO DISCIPLINE OR DISMISSAL. THIS REQUIRED HIS HONOUR TO DECIDE, AMONG OTHER THINGS, WHETHER THE AUGUST AND 2 SEPTEMBER EMAILS COULD BE SO CHARACTERISED. HE ACKNOWLEDGED THE COMMENT BY SACKVILLE AJA IN HEGGIE THAT “[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”.[59] HIS HONOUR THEN RELEVANTLY CONTINUED AS FOLLOWS:
“… THE APPELLANT CALLED NO EVIDENCE ITSELF TO SUPPORT ITS ASSERTION THAT AT THIS TIME, 30 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 … NO ISSUE [WAS] TAKEN WITH THE … 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 … NOWHERE, EITHER BEFORE THE MEMBER OR ON 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’…”.[60]
[59] Uzunovska, [56], citing Heggie, [59(i)].
[60] Uzunovska, [58].
The APPELLANT IN MR WILLOW’S CASE HAS ALSO CALLED NO EVIDENCE THAT IT TOOK, OR PROPOSED TO TAKE, ANY ACTION WITH RESPECT TO DISCIPLINE OR DISMISSAL OF HIM. THERE IS ALSO A SIMILARITY WITH THE PRESENT CASE IN THE DESCRIPTION OF THE EMAILS, WITH THE PRINCIPAL MEMBER DESCRIBING THEM AS “COUCHED IN TERMS OF ENCOURAGEMENT, TO PERSUADE TEACHERS TO GET VACCINATED, TO GIVE THEM INFORMATION WHERE TO OBTAIN IT ETC”. NO ISSUE HAS BEEN RAISED IN THIS CASE ABOUT THAT DESCRIPTION EITHER. THESE ARE THE SAME EMAILS AS THOSE IN UZUNOVSKA. I FIND THE PRINCIPAL MEMBER’S DESCRIPTION OF “THE FIRST SERIES OF EMAILS SENT BY THE [APPELLANT]” WAS OPEN TO HER AND INVOLVES NO ERROR. I ALSO THINK IT WOULD BE DIFFICULT TO CONCLUDE THEY ARE “DISCIPLINARY IN CONTENT OR TONE”.
THE appellant’s SUBMISSIONS, LIKE THOSE IN UZUNOVSKA, REFER TO MR WILLOW’S ANXIETY ABOUT VACCINATION BEING REQUIRED. A SIMILAR ARGUMENT WAS PUT TO THE PRINCIPAL MEMBER, INCLUDING MR WILLOW BEING FEARFUL FOR HIS JOB AND BEING PREPARED TO BE FIRED (AS RAISING ISSUES OF DISCIPLINE AND TERMINATION). SHE REJECTED THAT, SAYING:
“… THE FACT THAT MR WILLOW WAS WORRIED ABOUT HIS EMPLOYMENT DOES NOT EQUATE TO ACTIONS BEING TAKEN BY THE EMPLOYER TO DISCIPLINE OR TERMINATE HIM. THE FACT IS, AT THIS TIME, WHEN MR WILLOW DEVELOPED HIS INJURY, THE [APPELLANT] HAD NOT TAKEN SUCH ACTION. IT WAS AN EVOLVING AND FAST CHANGING SITUATION. IT MAY WELL HAVE BEEN THE CASE THAT THE DANGER WITH THE VIRUS COULD HAVE PASSED OR THE [APPELLANT] MAY HAVE CHOSEN DIFFERENT OPTIONS TO DEAL WITH THE SITUATION. I FIND ONE CANNOT JUDGE THE ACTIONS OF THE EMPLOYER BY WHAT HAPPENED SUBSEQUENTLY AND TREAT IT AS A FOREGONE CONCLUSION THAT DISCIPLINE OR DISMISSAL WOULD HAVE OCCURRED …”.[61]
[61] Reasons, [90].
This AGAIN IS A FACTUAL FINDING THAT WAS OPEN TO HER AND WAS MADE WITHOUT ERROR. THE APPELLANT HAS NOT ACTUALLY, OR AT LEAST CLEARLY ENOUGH, CRITICISED THIS REASONING. MY DISCUSSION OF UZUNOVSKA IS NOT TO UTILISE ANY MATTER OF FACT OR PRINCIPLE FLOWING FROM HIS HONOUR’S DECISION, OR TO NECESSARILY FOLLOW THE FINDINGS MADE BY HIS HONOUR. ALTHOUGH THE RELEVANT FACTS DISCUSSED ABOVE ARE SIMILAR, THERE ARE SOME DIFFERENCES IN THE FACTUAL CONTEXTS. I HAVE ONLY CONSIDERED UZUNOVSKA AS A FACTOR TO ASSIST MY ANALYSIS OF WHETHER THE PRINCIPAL MEMBER’S FACTUAL FINDINGS REGARDING THE AUGUST AND 2 SEPTEMBER EMAILS WERE OPEN TO HER. THIS DOES NOT INTRODUCE ANY FACTUAL OR LEGAL MATTER THE APPELLANT DID NOT ALREADY HAVE NOTICE OF. BEFORE MAKING ITS SUBMISSIONS, THE APPELLANT HAD NOTICE THAT THE CASE AGAINST IT INCLUDED THE POINT THAT THESE EMAILS DO NOT CONSTITUTE DISCIPLINE WITHIN THE MEANING OF S 11A (E.G. REASONS [87]). THIS IS SIMILARLY THE CASE WITH THE PRINCIPAL MEMBER’S FINDING (AT [90]) THAT MR WILLOW BEING WORRIED FOR HIS EMPLOYMENT “DOES NOT EQUATE TO ACTIONS BEING TAKEN BY THE EMPLOYER TO DISCIPLINE OR TERMINATE HIM”.
The PRINCIPAL MEMBER REFERRED TO DR WOODS’ STATEMENT,[62] NOTING IT SET OUT “THE STEPS BEING TAKEN BY THE GOVERNMENT AND THEN BY THE [APPELLANT] IN RELATION TO THE REQUIREMENT THAT PEOPLE BE VACCINATED”.[63] SHE ALSO NOTED THE APPELLANT’S SUBMISSION THAT “… IT IS DIFFICULT TO UNDERSTAND WHAT OTHER STEPS THE [APPELLANT] COULD HAVE TAKEN” AND THAT “NONE OF THE EMAILS … COULD BE VIEWED AS BULLYING OR IMPOSING UNREASONABLE REQUIREMENTS ON TEACHERS …”.[64] BUT THIS SUBMISSION DOES NOT ADEQUATELY DEAL WITH THE PARTICULAR “DISCIPLINE” ISSUE. IT RATHER GOES TO THE “CAUSATION” ISSUE IN S 11A(1). FOR EXAMPLE, WITH RESPECT TO THE AUGUST 2021 EMAIL, DR WOOD STATED:
“… [ON] 27 AUGUST 2021 THE DEPARTMENT SENT AN EMAIL TO ALL SCHOOL BASED STAFF WHICH ADVISED OF THE NSW GOVERNMENT’S INTENTION TO INTRODUCE THE … VACCINATION MANDATE AND PROVIDED WHAT INFORMATION WE HAD AT THAT TIME. WE WANTED TO ENSURE OUR STAFF WERE KEPT UPDATED AS THE SITUATION WAS MOVING QUICKLY AND A PUBLIC ANNOUNCEMENT WAS DUE TO BE MADE BY THE NSW PREMIER AT 11.00 AM …”.[65] (EMPHASIS ADDED)
[62] Appellant’s AALD 14 November 2022, pp 1–5.
[63] Reasons, [33].
[64] Reasons, [37].
[65] Appellant’s AALD 14 November 2022, p 2.
The ABOVE EMPHASISED WORDS APPEAR TO SHOW DR WOOD’S UNDERSTANDING OF THE INTENT OF THE AUGUST 2021 EMAIL, WITH NO REFERENCE TO DISCIPLINE OR TERMINATION. WHILE A CHARACTERISATION OF THE EMAILS SHOULD BE OBJECTIVELY ASSESSED, THIS CAN INCLUDE, AS A FACTOR IN THE ASSESSMENT, THE SUBJECTIVE BELIEF OF A SENIOR RESPONSIBLE PROPER OFFICER FOR THE APPELLANT. THIS BELIEF IS CONSISTENT WITH THE ASSESSMENT OF THE PRINCIPAL MEMBER’S VIEW (AT [87]) OF THE “FIRST SERIES OF EMAILS”. DR WOOD LATER STATED:
“THE DEPARTMENT’S COMMUNICATION WITH STAFF WAS INTENDED TO KEEP STAFF UP-TO-DATE OF THE PROGRESS OF THE [PUBLIC HEALTH (COVID-19) VACCINATION OF EDUCATION AND CARE WORKERS ORDER 2021] WHILST DEVELOPING THE SYSTEMS TO ENSURE THAT STAFF WOULD BE CLEAR ON THE REQUIREMENTS FOR VACCINATION, HOW TO PROVIDE THEIR VACCINATION STATUS TO THE DEPARTMENT AND THE PROCESS FOR STAFF WHO MAY REQUIRE AN EXEMPTION OR BE UNWILLING TO BE VACCINATED.
ON 2 SEPTEMBER 2021 THE DEPARTMENT SENT AN EMAIL … PROVIDING AN UPDATE ON MANDATORY VACCINATIONS. THIS INCLUDED INFORMATION REGARDING ACCESS TO PRIORITY VACCINATIONS AND PROVIDED ACCESS TO THE UNDATED INTRANET PAGE. A COPY OF THIS EMAIL [THE 2 SEPTEMBER EMAIL] IS ATTACHED”.[66]
[66] Appellant’s AALD 14 November 2022, p 3.
Again THERE IS NOTHING IN THESE COMMUNICATIONS, WHICH INCLUDE THE AUGUST AND 2 SEPTEMBER EMAILS, THAT, AT LEAST CLEARLY ENOUGH, REFERS TO DISCIPLINE OR DISMISSAL. IN STARK CONTRAST, A FURTHER EMAIL WAS SENT ON 22 OCTOBER 2021 TO “… ALL STAFF WHO EITHER WORK AT … OR … VISIT SCHOOLS … AS A REQUIREMENT OF THEIR ROLE WHO HAVE NOT ATTESTED THEIR VACCINATION STATUS … THIS IS THE FIRST LETTER OF DIRECTION IN THE VACCINATION NON-COMPLIANCE PROCESS”[67] (EMPHASIS ADDED). DR WOOD SUMMARISED THIS EMAIL, AND A RELATED “FACT SHEET”, STATING:
“ON THIS DATE [22 OCTOBER 2021] THE DEPARTMENT ALSO ISSUED A DIRECTION TO EMPLOYEES WHO HAD NOT YET ATTESTED THEIR VACCINATION STATUS TO UPDATE THEIR VACCINATION STATUS … EMPLOYEES WERE INFORMED THAT THEIR FAILURE TO COMPLY WITH THE DIRECTION WOULD RESULT IN DISCIPLINARY ACTION …”[68] (EMPHASIS ADDED).
[67] Appellant’s AALD 14 November 2022, p 56.
[68] Appellant’s AALD 14 November 2022, p 4.
Clearly, THE 22 OCTOBER 2021 EMAIL AND THE FACT SHEET, PARTICULARLY THE EMPHASISED PASSAGES, SHOW IT WAS AT LEAST OPEN TO THE PRINCIPAL MEMBER TO DESCRIBE THE FIRST SERIES OF EMAILS AS SHE DID, AND THAT SUCH CHARACTERISATION IS ALSO A SIGNIFICANT FACTOR POINTING TOWARDS IT ALSO BEING AT LEAST OPEN TO HER TO FIND[69] THAT EVEN THOUGH THE WHOLE AND PREDOMINANT CAUSE OF THE INJURY WAS AS A RESULT OF THE REQUIREMENT AS A TEACHER TO BE VACCINATED, THAT “DID NOT FALL WITHIN ANY OF THE LIST OF MATTERS IN S 11A”, CLEARLY AND RELEVANTLY IMPLYING A REFERENCE TO ACTION TAKEN BY THE APPELLANT WITH RESPECT TO DISCIPLINE OR DISMISSAL WITHIN THE MEANING OF S 11A(1).
[69] At reasons, [90], [92].
As TO THE “WHOLE PROCESS” POINT, THE APPELLANT SUBMITS THAT THE PRINCIPAL MEMBER “DID NOT REFUTE THAT THE WHOLE PROCESS … SHOULD BE TAKEN INTO ACCOUNT”, BUT RATHER SAID THAT “EACH CASE IS FACT SENSITIVE” AND “THE FACTS DID NOT ESTABLISH DIRECTIVES RELATING TO DISCIPLINE OR DISMISSAL UNTIL AFTER [THE INJURY]”.[70] THIS SUBMISSION IS THEN NOT DEVELOPED, AT LEAST ADEQUATELY. THE CASE FOR MR WILLOW WAS RELEVANTLY PUT ON THE BASIS THAT THE EMAILS – BEFORE THE INJURY WAS WHOLLY OR PREDOMINANTLY CAUSED – DID NOT CONSTITUTE “DISCIPLINE” WITHIN THE MEANING OF S 11A.
[70] Appellant’s submissions, [37].
The APPELLANT PUTS THAT THE AUGUST AND 2 SEPTEMBER EMAILS “WERE PART OF THAT DISCIPLINARY PROCESS”, WITH THIS APPARENT REASONING IMMEDIATELY FOLLOWING: “THIS PROCESS COMMENCED FOR GOOD REASON GIVEN THAT THE SAFETY AND WELL-BEING OF THE STUDENTS THAT THE WORKER TAUGHT WAS A PARAMOUNT CONSIDERATION WHEN … THE DIRECTIVE WAS ISSUED, A FACT … THE WORKER KNEW OR OUGHT TO HAVE KNOWN”.[71] AGAIN, THERE IS NO REFERENCE TO DISCIPLINE OR DISMISSAL HERE, NOR AN ATTEMPT TO ENGAGE WITH OR CRITICISE THE PRINCIPAL MEMBER’S REASONS FOR NOT ACCEPTING THE APPELLANT’S CASE IN THIS RESPECT.
[71] Appellant’s submissions, [40].
It APPEARS THAT THE APPELLANT’S SUBMISSIONS WITH RESPECT TO THE “WHOLE PROCESS” POINT ARE RESTRICTED TO THE AUGUST AND 2 SEPTEMBER 2021 EMAIL NOT BEING CONSIDERED PART OF THE PROCESS. HOWEVER, GIVEN THE REFERENCE (TO THE PRINCIPAL MEMBER) TO HEGGIE AND SINCLAIR IN THAT CONTEXT, AND THE SIMILARLY FLEETING REFERENCE (ON APPEAL) TO “ACTION … PROPOSED TO BE TAKEN (EMPHASIS IN THE ORIGINAL)”,[72] I WILL DEAL WITH THIS FOR ABUNDANT CAUTION. IN HEGGIE, SACKVILLE AJA STATED:
“A BROAD VIEW HAS BEEN TAKEN OF THE EXPRESSION ‘ACTION WITH RESPECT TO DISCIPLINE’. IN [SINCLAIR], SPIGELMAN CJ OBSERVED (AT [35]) THAT THE FORMULATION IN S 11A ‘EXTENDS TO THE ENTIRE PROCESS INVOLVED IN … ‘DISCIPLINE’ INCLUDING THE COURSE OF AN INVESTIGATION’. HIS HONOUR ALSO NOTED (AT [96]) THAT ACTIONS WITH RESPECT TO DISCIPLINE USUALLY INVOLVE A SERIES OF STEPS WHICH CUMULATIVELY CAN HAVE PSYCHOLOGICAL EFFECTS …”.[73]
[72] Appellant’s submissions, [36].
[73] Heggie, [52].
The WORD “USUALLY” IN THE ABOVE PASSAGE SHOWS THE COURT OF APPEAL DID NOT, IN EITHER SINCLAIR OR HEGGIE, STATE THAT S 11A EXTENDS TO THE “ENTIRE PROCESS” IN EVERY CASE. SPIGELMAN CJ RELEVANTLY SAID IN SINCLAIR:
“… MATTERS SUCH AS … ‘DISCIPLINE … OR DISMISSAL’ … USUALLY INVOLVE A SERIES OF STEPS WHICH CUMULATIVELY CAN HAVE PSYCHOLOGICAL EFFECTS. MORE OFTEN THAN NOT IT WILL NOT BE POSSIBLE TO ISOLATE THE EFFECT OF A SINGLE STEP. IN SUCH A CONTEXT, THE ‘WHOLE OR PREDOMINANT CAUSE’ IS THE ENTIRETY OF THE CONDUCT WITH RESPECT TO … DISCIPLINE.” (EMPHASIS ADDED)[74]
[74] Sinclair, [96].
The facts in Mr WILLOW’S CASE ARE NOT IN SUCH A CONTEXT BECAUSE THE PRINCIPAL MEMBER DID ISOLATE THE EFFECTS OF A SINGLE STEP. SHE DID SO BY PROPERLY UNDERTAKING THE S 11A CAUSATION ANALYSIS WHICH CONCLUDED WITH THE STATEMENT THAT “[T]HERE IS A NEED TO JUDGE WHAT WERE THE ACTIONS OF THE EMPLOYER THAT CAUSED THE PSYCHOLOGICAL INJURY”, IMMEDIATELY BEFORE FINDING THE WHOLE OR PREDOMINANT CAUSE OF THE INJURY WAS “THE MERE FACT THAT [MR WILLOW] WAS TOLD HE WAS REQUIRED TO BE VACCINATED”.[75] SHE HAD EARLIER REJECTED THE APPELLANT’S ARGUMENT THAT THE WHOLE PROCESS WAS ONE OF DISCIPLINE, NOTING THE FACTS IN MR WILLOW’S CASE “WERE VASTLY DIFFERENT” TO THOSE IN WEBB, AND THAT “THESE CASES ARE FACT SENSITIVE”, REFERRING TO THE EMAILS BEING “COUCHED IN TERMS OF ENCOURAGEMENT” ETC.[76]
[75] Reasons, [90].
[76] Reasons, [87].
IT MAY ALSO BE SAID THAT THE BASAL FACTS IN THIS CASE, ESSENTIALLY RELATING TO AN UNUSUALLY MAJOR INFECTIOUS DISEASE EPIDEMIC AFFECTING THE WORLD IN SOME WAY DO NOT INVOLVE THE USUAL S 11A FACTS, WHICH OFTEN (AT LEAST, AND PERHAPS USUALLY) INVOLVE THE SAME BASAL FACTS FOUND IN SINCLAIR, HEGGIE AND WEBB I.E. AN ISSUE ARISES IN THE WORKPLACE ABOUT PERFORMANCE OR CONDUCT AND A PROCESS OCCURS, WHETHER IT BE BRIEF OR MORE LENGTHY, BEFORE A DETERMINATION MADE BY AN EMPLOYER ABOUT THE ISSUE. THIS IS NOT TO SAY THAT THE “ENTIRE PROCESS” POINT MADE IN SINCLAIR AND HEGGIE DOES NOT APPLY TO A CASE INVOLVING COVID-19. IT IS ONLY ONE FACTOR, AMONGST OTHERS MENTIONED ABOVE THAT ADD UP TO A PERSUASION I HAVE THAT THE PRINCIPAL MEMBER DID NOT ERR IN DISTINGUISHING MR WILLOW’S CASE FROM THE ABOVE THREE CASES.
The PRINCIPAL MEMBER CONTINUED THIS ANALYSIS BY FOCUSING ON 7 SEPTEMBER 2021 WHEN DR RHEE UNDERTOOK THE MENTAL HEALTH PLAN[77] FOR MR WILLOW WHICH REFERRED TO “DIAGNOSIS: ACUTE STRESS REACTION ON BACKGROUND OF PAST HISTORY OF ANXIETY/DEPRESSION … SEVERE STRESS, FEELING AGITATED, ANXIOUS, FREQUENTLY WAKING UP FROM SLEEP”. SHE THEN NOTED “OTHER RELEVANT INFORMATION IS ‘GOVERNMENT MANDATE THAT ALL TEACHERS MUST BE VACCINATED AGAINST COVID-19’”, AND FOUND “THIS PLAN, AND THE CORRESPONDING CLINICAL ENTRY, TO BE SIGNIFICANT BECAUSE THEY DEMONSTRATE HOW ILL MR WILLOW HAD BECOME PSYCHOLOGICALLY AND HE WAS REFERRED FOR TREATMENT”.[78] SHE THEN WENT ON TO FIND: “THE FACT IS, AT THIS TIME, WHEN MR WILLOW DEVELOPED HIS INJURY THE [APPELLANT] HAD NOT TAKEN SUCH ACTION”.[79] CLEARLY, “THIS TIME” IS A REFERENCE TO THE DEVELOPMENT OF THE INJURY ON OR BY 7 SEPTEMBER 2021.
[77] ARD, p 196.
[78] Reasons, [88]–[89].
[79] Reasons, [90].
ALL THESE FINDINGS IN MY OPINION WERE NOT ONLY CLEARLY OPEN TO HER, BUT ALSO ACCURATE FINDINGS GIVEN THE EVIDENCE. THE APPELLANT’S SUBMISSIONS DO NOT ENGAGE WITH THE DETAIL OR PARTICULARITY OF THE PRINCIPAL MEMBER’S FINDINGS AND REASONS IN THIS REGARD. THEY (FOR EXAMPLE AT [39]–[40]) APPEAR TO AMOUNT TO IT BEING OBVIOUS THAT THE AUGUST AND 2 SEPTEMBER 2021 EMAILS WERE PART OF THE DISCIPLINARY PROCESS, AND THIS WAS NOT TAKEN INTO ACCOUNT. I DO NOT ACCEPT THAT SUBMISSION. THOSE EMAILS WERE TAKEN INTO ACCOUNT, AND IT WAS FOUND, WITHOUT ERROR, THAT THEY DID NOT CONSTITUTE DISCIPLINE WITHIN S 11A, FOR THE REASONS GIVEN EARLIER.
As TO THE DEVELOPMENT AND TIMING OF THE INJURY, THE PRINCIPAL MEMBER MADE IT CLEAR THAT SHE SAW THE EVIDENCE OF DR RHEE TO BE THE “MOST RELEVANT” AS HE HAD BEEN MR WILLOW’S GP SINCE 2013 AND THIS PUT HIM IN A SUPERIOR POSITION IN WITNESSING MR WILLOW’S MENTAL HEALTH OVER THE YEARS “THAN EITHER OF THE TWO MEDICO-LEGAL SPECIALISTS NOTWITHSTANDING THEY ARE PSYCHIATRISTS ... DR RHEE HAS PROVIDED VERY DETAILED AND CAREFUL NOTES AND HIS PROGRESS NOTES DO PROVIDE AN ACCURATE ACCOUNT OF MR WILLOW’S PRESENTATION OVER MANY YEARS”.[80] THESE FINDINGS WERE ALSO OPEN TO HER, AND THE APPELLANT, PROPERLY, DOES NOT CRITICISE THEM.
[80] Reasons, [76].

The PRINCIPAL MEMBER PAINSTAKINGLY SET OUT THE DETAILS OF DR RHEE’S CLINICAL RECORDS BETWEEN 26 AUGUST 2013 TO 24 FEBRUARY 2022,[81] WHICH INCLUDED THE RECORDS OF MR WILLOW’S SYMPTOMS IN THE CONTEXT OF HIS WORK AT CROMER AND CH. THEN SHE NOTED THERE WERE NO ENTRIES IN THOSE RECORDS BETWEEN 17 OCTOBER 2018 TO 30 DECEMBER 2020 – AND “THE NEXT ENTRY IS 7 JULY 2021 IN RELATION TO A FLARE UP OF ECZEMA”.[82] SHE THEN NOTES THAT THE NEXT ENTRY IS 30 AUGUST 2021, DR RHEE NOTED “[MR WILLOW] DOES NOT WANT TO SUBMIT TO A TYRANNICAL GOVERNMENT FORCING PEOPLE TO UNDERGO AN INVASIVE PROCEDURE AGAINST THEIR WISHES” AND THAT THE APPELLANT WAS MANDATING VACCINES FOR ALL TEACHERS BY 8 NOVEMBER 2021.[83] SHE ALSO NOTED THAT MR WILLOW TOLD DR RHEE, AT A TELEHEALTH APPOINTMENT ON 6 SEPTEMBER, “THAT HE WILL NOT HAVE THE VACCINE EVEN IF HE GETS FIRED …” AND “WANTED A ZOOM MEETING FOR THE NEXT DAY TO GET A [GP] MENTAL HEALTH PLAN … TO GET A PSYCHOLOGIST REFERRAL” AND “HE AGREED HE MIGHT HAVE A PSYCHOLOGICAL ISSUE …”.[84]
[81] Reasons, [53]–[68].
[82] Reasons, [60].
[83] Reasons, [61].
[84] Reasons, [62].
The PRINCIPAL MEMBER THEN NOTED THE CONSULTATION ON 7 SEPTEMBER 2021. THIS RECORD INCLUDES MR WILLOW AGREEING “HE HAS ACUTE STRESS REACTION DUE TO THE GOVERNMENT MANDATE, ON THE BACKGROUND OF HIS DEPRESSION/ANXIETY” AND A MENTAL HEALTH PLAN ON 7 SEPTEMBER 2021 REFERRING TO “DIAGNOSIS: ACUTE STRESS REACTION ON BACKGROUND OF PAST HISTORY OF ANXIETY/DEPRESSION … SEVERE STRESS, FEELING AGITATED, ANXIOUS, FREQUENTLY WAKING UP FROM SLEEP”.[85]
[85] Reasons, [63]–[64].
THE PRINCIPAL MEMBER AGAIN NOTED THAT THERE WERE NO ENTRIES IN DR RHEE’S RECORD BETWEEN OCTOBER 2018 AND DECEMBER 2020.[86] SHE ACKNOWLEDGED THAT IT WAS “DIFFICULT IN PSYCHOLOGICAL INJURY CASES TO TEASE OUT THE CAUSATIVE FACTORS”.[87] SHE ALSO NOTED DR RASTOGI PROVIDED SUPPORT FOR THE PROPOSITION THAT IT WAS “MR WILLOW’S ACCUMULATED EXPERIENCE WITH THE [APPELLANT] AND THE VACCINE MANDATE WAS THE FINAL STRAW”. BUT AFTER ALSO ACKNOWLEDGING THE PRINCIPLES IN HAMAD, SHE SAID SHE DID NOT ACCEPT THE ANALYSIS OF DR RASTOGI BECAUSE IT WAS NOT SUFFICIENTLY DETAILED TO ASSIST IN DETERMINING WHICH FACTORS WERE THE WHOLE OR PREDOMINANT CAUSE OF THE INJURY. IN THIS REGARD SHE RETURNED TO THE NOTES OF TO DR RHEE FOR ASSISTANCE – AND STATED:
“… THERE IS NO EVIDENCE THAT MR WILLOW CONTINUED TO SUFFER PSYCHOLOGICAL SYMPTOMS ONCE HIS COMPASSIONATE TRANSFER WAS APPROVED AT THE END OF 2018 AND COMMENCED IN 2019. THEREAFTER, THERE IS A LONG PERIOD OF TIME WHEN THERE IS NO MEDICAL EVIDENCE … TO DEMONSTRATE THAT HIS PRIOR PSYCHOLOGICAL CONDITION WAS PERSISTING”.[88]
[86] Reasons, [78].
[87] Reasons, [79].
[88] Reasons, [81].
Against THAT CAREFULLY CONSIDERED BACKGROUND, THE PRINCIPAL MEMBER FOUND THAT LEFT “THE EVENTS IN 2021 AS BEING THE WHOLE OR PREDOMINANT CAUSE OF THE … INJURY … TO BE VACCINATED”.[89] THEN, SHE ACCEPTED THE SUBMISSION FOR MR WILLOW THAT HE “SUSTAINED HIS … INJURY BEFORE [HE WAS] EVER ADVISED THAT THERE WOULD BE DISCIPLINARY STEPS TAKEN OR DISMISSAL IF TEACHERS DID NOT GET DOUBLE VACCINATED”,[90] AND NOTED THE APPELLANT’S “WHOLE PROCESS” ARGUMENT, AND REJECTED IT, SAYING THE FACTS IN THE PRESENT CASE “WERE VASTLY DIFFERENT, AND THESE CASES ARE FACT SENSITIVE”, REFERRING TO THE “FIRST SERIES OF EMAILS” BEING “COUCHED IN TERMS OF ENCOURAGEMENT TO PERSUADE TEACHERS TO GET VACCINATED, TO GIVE THEM INFORMATION WHERE TO OBTAIN IT ETC”.[91]
[89] Reasons, [84].
[90] Reasons, [86].
[91] Reasons, [87].
These FINDINGS ABOUT THE INJURY HAVING DEVELOPED BY 7 SEPTEMBER 2021 WERE OPEN TO HER IN MY OPINION AND ARE CONSISTENT WITH THE EVIDENCE. THE PAINSTAKINGLY DETAILED EXAMINATION OF THE HISTORY OF MR WILLOW’S PRESENTATION, MAINLY RECORDED IN THE NOTES OF DR RHEE, DO SHOW THAT HIS SYMPTOMS HAD BECOME MARKEDLY FLORID BY THAT TIME – AND IN THE CONTEXT WHICH THE PRINCIPAL MEMBER FOUND TO BE THE WHOLE OR PREDOMINANT CAUSE OF THE INJURY – BEING TOLD THAT HE WAS REQUIRED TO BE VACCINATED. THAT WAS ACTION BY THE APPELLANT, BUT IT WAS NOT WITH RESPECT TO DISCIPLINE OR DISMISSAL. THIS WAS A FACTUAL FINDING AND IT WAS OPEN TO HER AND NO ERROR WAS MADE IN ITS MAKING.
The PRINCIPAL MEMBER’S FINDINGS IN THIS REGARD ARE CONSISTENT WITH OTHER EVIDENCE, INCLUDING AS SHE FOUND FROM DR AHMAD WHO STATED “IT WAS THE COVID VACCINE MANDATE WHICH AFFECTED HIS PSYCHOLOGICAL HEALTH THE MOST”.[92] AS THE PRINCIPAL MEMBER NOTED, AFTER THE CONSULTATION WITH DR RHEE ON 7 SEPTEMBER 2021 MR WILLOW SAW HIM AGAIN ON 21 SEPTEMBER, 22 SEPTEMBER, 8 OCTOBER AND 4 NOVEMBER 2021, AT WHICH STAGE HE PROVIDED A CERTIFICATE OF INCAPACITY FOR WORK.[93]
[92] Reasons, [91].
[93] Reasons, [65]; ARD, pp 288–290.
The APPELLANT HAS POINTED TO NO EVIDENCE, NOR MADE ANY PARTICULAR SUBMISSION, THAT THE FINDING OF THE INJURY HAVING DEVELOPED BY 7 SEPTEMBER 2021 WAS ERRONEOUS BECAUSE, FOR EXAMPLE, THERE WAS A/WERE FURTHER INJURIOUS EVENT(S) BETWEEN THAT TIME AND WHEN HE CEASED WORK ON 4 NOVEMBER 2021 AND/OR THE INJURY WORSENED BECAUSE OF ANY SUCH EVENT(S). THIS IS SIGNIFICANT IN THE CONTEXT OF THE ONUS OF PROOF BORNE BY THE APPELLANT. WHILE THE PRINCIPAL MEMBER DID NOT MAKE ANY EXPLICIT FINDING IN THIS RESPECT, IT IS CLEARLY ENOUGH IMPLICIT FROM HER VERY DETAILED ANALYSIS OF MR WILLOW’S PRESENTATION TO DR RHEE ON 7 SEPTEMBER 2021. A FAIR READING OF HER REASONS IS THAT SHE DID TAKE INTO ACCOUNT MR WILLOW’S CONDITION IN THE CONTEXT OF HIS EMPLOYMENT BETWEEN 7 SEPTEMBER 2021 AND 4 NOVEMBER 2021, BUT CONSIDERED IT HAD LITTLE BEARING ON THE QUESTION OF WHEN THE INJURY DEVELOPED. IN HEGGIE, SACKVILLE AJA ALSO STATED:
“THE [1998 ACT] PROVIDES THAT THE COMMISSION IS TO ATTACH TO ITS CERTIFICATE OF DETERMINATION A BRIEF STATEMENT OF ITS REASONS. THE [1998 ACT] … ALSO PROVIDES THAT PROCEEDINGS ARE TO BE CONDUCTED AS INFORMALLY AS PROPER CONSIDERATION OF THE MATTER PERMITS AND THAT THE RULES OF EVIDENCE DO NOT APPLY. HAVING REGARD TO THESE PROVISIONS, I THINK A FAIR READING OF THE ARBITRATOR’S REASONS IS THAT HE DID TAKE INTO ACCOUNT THE EVENTS PRECEDING THE ALLEGED ASSAULT, BUT CONSIDERED THAT THEY HAD LITTLE BEARING ON THE ISSUE OF THE REASONABLENESS OF THE HEALTH NETWORK’S ACTIONS”.[94]
[94] Heggie, [166].
While THE FACTS HERE ARE NOT THE SAME AS THOSE CONSIDERED BY SACKVILLE AJA IN HEGGIE, I CONSIDER THE CIRCUMSTANCES PREVAILING HERE ALLOW FOR A SIMILAR “FAIR READING”.
TO THE EXTENT THAT THE APPELLANT ARGUES THERE WAS ACTION PROPOSED TO BE TAKEN WITH RESPECT TO DISCIPLINE, I REJECT THAT ARGUMENT. THE PRINCIPAL MEMBER NOTED MR WILLOW’S SUBMISSION THAT “IT WAS FIVE DAYS AFTER THAT [2 SEPTEMBER 2021] EMAIL THAT MR WILLOW WENT TO SEE HIS [GP] AND THE DOCTOR LISTS A WHOLE LOT OF SYMPTOMS DEMONSTRATING A WORSENING OF [HIS] PSYCHIATRIC CONDITION … THIS WAS BEFORE THERE WAS ANY DISCIPLINE PROPOSED …”. [95] THE PRINCIPAL MEMBER THEN “ACCEPT[ED] [THE] SUBMISSION THAT MR WILLOW SUSTAINED HIS PSYCHOLOGICAL INJURY BEFORE THE [APPELLANT] EVER ADVISED THAT THERE WOULD BE DISCIPLINARY STEPS TAKEN OR DISMISSAL IF TEACHERS DID NOT GET DOUBLE VACCINATED”.[96] ALSO RELEVANT IN THIS REGARD ARE HER COMMENTS THAT, IN ALL THE CIRCUMSTANCES OF MR WILLOW’S CASE, “I FIND ONE CANNOT JUDGE THE ACTIONS OF THE EMPLOYER BY WHAT HAPPENED SUBSEQUENTLY AND TREAT IT AS A FOREGONE CONCLUSION THAT DISCIPLINE OR DISMISSAL WOULD HAVE OCCURRED. THERE IS A NEED TO JUDGE WHAT WERE THE ACTIONS OF THE EMPLOYER THAT CAUSED THE … INJURY …”.[97]
[95] Reasons, [22].
[96] Reasons, [86].
[97] Reasons, [90].
Further, THE WAY THE PRINCIPAL MEMBER HAS DISPOSED OF THIS ASPECT OF THE CASE MEANS THAT HER RELEVANT FINDINGS THAT ANY ACTION UP TO THE TIME OF INJURY WAS NOT WITH RESPECT TO “DISCIPLINE” OR “DISMISSAL”, ACTION TAKEN OR PROPOSED TO BE TAKEN. IN MY OPINION, IT WAS OPEN TO HER TO DEAL WITH THE FACT-FINDING THIS WAY, AND THERE IS NO ERROR INVOLVED. THE COMPARISON OF THE AUGUST AND 2 SEPTEMBER 2021 EMAILS WITH THE 22 OCTOBER 2021 EMAIL SHOWS THIS WELL.
The APPELLANT’S SUBMISSIONS ALSO INCLUDE SOME FOCUS ON THE FEARS, CONCERNS OR WORRIES OF MR WILLOW ABOUT THE VACCINATION MANDATE AND THE CONSEQUENCES TO HIM – RATHER THAN ENGAGING WITH ANY SIGNIFICANT DETAIL OR CONTENT IN RELATION TO “ACTION … BY … THE EMPLOYER WITH RESPECT TO … DISCIPLINE …”, AGAIN EXCEPT TO THE EXTENT THAT THE MANDATE ITSELF IS SUFFICIENT EVIDENCE OF THE “DISCIPLINE”. FOR THE REASONS GIVEN ABOVE, I DO NOT ACCEPT THAT SUBMISSION. GROUNDS 1 AND 4 FAIL AND ARE DISMISSED.
I ALSO REJECT THE APPELLANT’S GROUND 2 ARGUMENTS. IT APPEARS TO AMOUNT TO AN ARGUMENT THAT THE PRINCIPAL MEMBER FOUND THERE COULD NOT BE DISCIPLINARY ACTION WITHOUT MR WILLOW BEING ADVISED, AND IT WAS CLEAR HE WAS SO ADVISED FROM AUGUST 2021. WITH RESPECT, THIS SUBMISSION IS MISGUIDED. HER COMMENT THAT MR WILLOW “SUSTAINED HIS … INJURY BEFORE THE [APPELLANT] EVER ADVISED … THERE WOULD BE DISCIPLINARY STEPS …”[98] NEEDS TO BE LOOKED AT IN PROPER CONTEXT. THIS SHOWS HER ACCEPTING MR MOFFET’S SUBMISSION IN THIS REGARD. SHE RECORDED THIS SUBMISSION AS:
“… THERE IS NOTHING AT THIS POINT IN TIME [AUGUST 2021] WHICH FALLS WITHIN ONE OF THE MATTERS LISTED IN S 11A. IT IS SUBMITTED THAT AT THIS TIME THE [APPELLANT] HAD NOT MENTIONED ANYTHING ABOUT DISCIPLINE OR TERMINATION … [AND] THE EMAIL … ON 2 SEPTEMBER 2021 WAS WHEN THE [APPELLANT] WAS COMMUNICATING TO ITS STAFF INFORMATION THAT FROM 8 NOVEMBER 2021 ALL … STAFF WILL BE REQUIRED TO HAVE HAD TWO DOSES OF THE VACCINE AND STRONGLY ENCOURAGED STAFF TO HAVE THE VACCINE …”.[99]
[98] Reasons, [86].
[99] Reasons, [47].
IT CAN ALSO BE CLEARLY SEEN THAT THE NOTION OF ADVICE, TO MR WILLOW, OF DISCIPLINE BEING NECESSARY PLAYED NO ROLE AT ALL OTHERWISE IN THE DISPOSITIVE REASONING IN THE CASE. CLEARLY, THE WORD “ADVISED” AT [86] WAS ONLY INTENDED TO ASSIST IN DELINEATING THE TIMING OF THE ONSET OF THE INJURY BY REFERENCE TO WHETHER ANY DISCIPLINARY STEPS HAD BEEN TAKEN BY 7 SEPTEMBER 2021. THIS IS CONSISTENT WITH THE PRINCIPAL MEMBER ALSO FINDING THAT “THE ACTIONS OF THE EMPLOYER THAT CAUSED THE PSYCHOLOGICAL INJURY … WAS THE MERE FACT THAT HE WAS TOLD HE WAS REQUIRED TO BE VACCINATED.”[100]
[100] Reasons, [90].
Reasons SHOULD BE READ FAIRLY. IN A1 GRANNY FLATS V WORKERS COMPENSATION NOMINAL INSURER(ICARE),[101] PHILLIPS P OBSERVED THAT:
“… IT IS NECESSARY TO HAVE REGARD TO THE OVERALL SENSE AND IMPORT OF THE REASONS, READ AS A WHOLE AND WITHOUT AN EYE ATTUNED TO THE DETECTION OF ERROR. IN RONCEVIC V REPATRIATION COMMISSION KIRBY J SAID THAT THE COURTS SHOULD ‘AVOID OVERLY PERNICKETY EXAMINATION OF THE REASONS’ AND THAT THE ‘FOCUS OF ATTENTION IS ON THE SUBSTANCE OF THE DECISION AND WHETHER IT HAS ADDRESSED THE ‘REAL ISSUE’ ...”.
[101] [2023] NSWPICPD 69, [163].
I also REJECT, FOR THE SAME REASONS, AND FOR THE REASONS EARLIER PROVIDED IN RELATION TO GROUNDS 1 AND 4, THE APPELLANT’S SUBMISSIONS IN SUPPORT OF GROUND 2, “THAT TO FIND … A SPECIFIC PENALTY WOULD NEED TO BE ADVISED BEFORE THE ACTIONS … COULD BE CONSIDERED TO BE DISCIPLINARY IS AN ERROR OF LAW.”[102] AGAIN, THIS SUBMISSION IS UNDEVELOPED BEYOND THE BARE STATEMENT, AND IT IS INCORRECT. THE PRINCIPAL MEMBER DID NOT MENTION ANY PENALTY. RATHER, SHE FOUND THAT THE “FIRST SERIES OF EMAILS”, RELEVANTLY, THE AUGUST AND 2 SEPTEMBER 2021 EMAILS, DID NOT CONSTITUTE A DISCIPLINE PROCESS. THESE EMAILS APPEAR TO BE THE SOLE BASIS OF THE APPELLANT’S CASE ON APPEAL TO THE CONTRARY. OTHERWISE FOR THE ABOVE REASONS GROUND 2 FAILS AND IS DISMISSED.
[102] Appellant’s submissions, [26].
The CONTENT OF GROUND 3 OVERLAPS WITH, AND ESSENTIALLY REPEATS, THAT OF THE OTHER GROUNDS. THIS IS DONE TRANSPARENTLY GIVEN THE REFERENCE TO “REPEATS” IN PARAGRAPHS [30] AND [35] OF THE APPELLANT’S SUBMISSIONS. THERE IS NOTHING RAISED UNDER THIS GROUND THAT HAS NOT BEEN COVERED IN THE ABOVE REASONING IN THE ANALYSIS OF GROUNDS 1, 2 AND 4. GROUND 3 FAILS AND IS DISMISSED.

DECISION

The Certificate of Determination dated 8 May 2023 is confirmed.

Michael Perry
ACTING DEPUTY PRESIDENT

5 June 2024