Smith v Secretary, Department of Education
[2024] NSWPIC 155
•28 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Smith v Secretary, Department of Education [2024] NSWPIC 155 |
| APPLICANT: | Jodie Smith |
| RESPONDENT: | Secretary, Department of Education |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 28 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” not in dispute however the respondent raised a defence under section 11A in respect to discipline; consideration of the Public Health Order in relation to Covid-19; Held – findings made that section 11A defence not established as the performance appraisal and dismissal were not the whole or predominant cause of the injury, and even if they were, the respondent employer’s actions were not reasonable; Northern NSW Local Health Network v Heggie and Webb v State of New South Wales applied. |
| DETERMINATIONS MADE: | The Commission determines: 1. The respondent has not established a defence under s11A of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant weekly benefits compensation as follows: (a) from 9 November 2021 to 7 February 2022 at the rate of $1,573.71 per week pursuant to s 36(1) of the Workers Compensation Act 1987, and (b) from 8 February 2022 to date and continuing at the rate of $1,325.23 per week pursuant to s 37(1) of the Workers Compensation Act 1987. 3. The respondent is to have credit for payments made in the above periods, with any sick leave being re-credited. |
STATEMENT OF REASONS
BACKGROUND
Jodie Smith (the applicant) was employed as a teacher with the respondent, Secretary, Department of Education, from about May 2000. She commenced work at Floraville Public School in 2002 and was made permanent in 2005. She was teaching year 2, four days per week.
In these proceedings Ms Smith seeks weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) for psychological injury that she alleges she sustained arising out of or in the course of her employment with the respondent in relation to events occurring in the period 27 August 2021 and 8 November 2021. She pleads the injury as “an adjustment disorder with anxious distress in background of pre-existing post-traumatic stress disorder”. Ms Smith has experienced significant health issues in the past including cardiac and psychological.
The respondent’s counsel confirmed that s 4 and s 9A of the 1987 Act are no longer in issue. The main issue for the Personal Injury Commission (Commission) to determine is the respondent’s reliance upon a defence under s 11A, that Ms Smith’s injury has arisen because of reasonable actions by the respondent in relation to discipline.
Ms Smith’s capacity for employment is also in dispute. The claim for weekly compensation commences on 8 November 2021 and is an ongoing claim. The pre-injury average earnings (PIAWE) figure claimed by Ms Smith is $1,656.54. The respondent said it was $1,652.54. If the applicant is successful, there is consensus that there should be an order for credit for sick leave paid.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 3 October 2023 which was held on the MS Teams platform as the applicant does not live in Sydney. Mr Dodd of counsel appeared for her instructed by Mr McCabe, solicitor. Mr Grant of counsel appeared for the respondent instructed by Ms Malone, solicitor.
Written submissions were sought in relation to the decision of the Court of Appeal in Secretary, Department of Education v Dawking[1] and these have been supplied.
EVIDENCE
[1] [2024] NSWCA 4 (Dawking).
Oral evidence
There was no oral evidence. The main submissions were presented orally and a sound recording was made of those submissions and is available to the parties.
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD-A) dated 25 August 2023 filed by the applicant;
(d) Application to Admit Late Documents (AALD-1) dated 26 September 2023 filed by the respondent;
(e) applicant’s written submissions dated 14 February 2024, and
(f) respondent’s written submissions dated 18 February 2024.
Pre-injury medical reports
On 14 April 2015 Dr Rogers reported to Ms Smith’s general practitioner, Dr Millar, about Ms Smith suffering a cardiac incident when she was inadvertently given an injection of adrenaline during a hysterectomy operation. He says he explained to Ms Smith that there are no long term sequelae.[2]
[2] ARD p 98.
On 12 January 2018 Dr Gertler provided a psychiatric medico-legal report for her then solicitors about the psychological sequelae of Ms Smith undergoing a hysterectomy on 5 March 2015 and being given, inadvertently, adrenaline intravenously, which caused cardiac issues.[3] Dr Gertler has the history that her anxiety increased significantly in early 2017 when Ms Smith had to undergo a lumpectomy on her left breast. Two months later she developed right sided symptoms and was concerned she was having a stroke. At the time of the report she was working two days a week as a teacher because of the demands of her household and the needs of the family members.
[3] ARD p 104 and AALD-1 p 22.
Dr Gertler diagnosed a post-traumatic stress disorder and he said she continues to react to reminders of that event. Dr Gertler states she is tense and anxious but is mostly able to control this and it does not affect her fitness to work as a teacher. The doctor concludes by advising that the event on 5 March 2015 has made her more vulnerable to future stresses which she may experience in her life, particularly if those stresses relate to her needs, or the needs of others close to her, to have hospital treatment.
On 13 September 2018 Ms Smith was referred to Dr Parkinson in relation to the MRI scan report of spinal cord compression at C4/5 and C5/6 with evidence of myelopathy and foraminal narrowing and impingement of nerve roots.[4] She ultimately underwent surgery.
[4] AALD-1 p 63.
On 4 June 2019 Dr Brednya’s clinical notes record that he gave Ms Smith an influenza vaccine.[5]
[5] AALD-1 p 115.
On 17 June 2019 Ms Smith was referred to Dr Fiatarone to investigate a one month history of intermittent rectal bleeding.[6]
[6] AALD-1 p 65.
On 10 August 2020 Dr Patel, general practitioner, referred Ms Smith to Dr Singh, ENT, due to over a month history of feeling short of breath and something in her throat.[7]
[7] AALD-1 p 59.
Post-injury medical treatment
On 27 September 2021 Ms Smith’s general practitioner from the Gwandalan Summerland Medical Centre, Dr Brednya, recorded in his clinical notes that the reason for visit was “anxiety and fear” and “counselling re COVID vaccination”.
On 11 October 2021 Dr Brednya in his clinical note records “also asked to fill in worker’s comp but not sure if will be accepted”[8] and a NSW Workcover Certificate of Capacity was issued.[9] The certificate has a diagnosis of “Anxiety/depression, PTSD” and the doctor writes that Ms Smith has been recently under pressure to have COVID 19 vaccination. She has underlying heart condition and is anxious about possible side effects/complications of vaccination. Her employer does not accept her decision and she is threatened she will lose her position. This has led to exacerbation of her anxiety, her mood deteriorated and symptoms of PTSD increased. Dr Brednya certified her as having no current work capacity for any employment.
[8] AALD-1 p 121.
[9] ARD p 24.
On 11 October 2021 Dr Brednya completed a GP Mental Health Care Plan Review.[10] She wrote that the presenting issues were “anxiety/Depression/PTSD” and that Ms Smith had a long history of the above conditions and stated:
“Recently under pressure to have COVID19 vaccination. She has underlying heart condition and is anxious about possible side effects /complications of vaccination. Her employer does not accept her decision and she is threatened she will loose [sic] her position.”
[10] AALD-1 p 44.
The doctor recommended treatment with cognitive behaviour therapy, four sessions and relaxation. A referral was issued to Adam Wiseman to provide psychological treatment.[11]
[11] AALD-1 p 61.
On 8 November 2021 Adam Wiseman, psychologist, reported to Dr Brednya that he has treated Ms Smith some years ago. He advised that Ms Smith said she is struggling with anxiety relating to getting vaccinated and the uncertainty regarding potential side effects given her medical history.[12] She also reported depression relating to the impact that being unvaccinated is having on her, especially regarding her work.
[12] AALD-1 p 56.
From 21 to 23 January 2022 Ms Smith was an inpatient at Wyong Hospital having undergone a cholecystectomy by laparoscopic procedure.
On 21 April 2022 another Mental Health Plan was completed and six more sessions of cognitive behaviour therapy (CBT) was recommended.[13]
[13] AALD-1 p 71.
On 31 May 2022 Dr James Rogers, cardiologist, reported to Dr Brednya, general practitioner, from the Gwandalan Summerland Medical Centre.[14] Dr Rogers advised that on balance he thought the applicant should not be vaccinated. Dr Rogers sets out her medical history including gynaecological issues following giving birth 16 years earlier, leading to the need for the hysterectomy. He gives a detailed account of the cardiac issues she experienced when given inadvertently adrenaline during that surgery. He notes the 2017 lumpectomy was complicated by panic attacks and she had ongoing severe health anxiety and was diagnosed with post-traumatic stress disorder. He adds in 2018 she had severe cervical spine problems with C5/6 bulging disc which required an anterior cervical discectomy and fusion and she has had benign positional vertigo.
[14] ARD p 109 and AALD-1 p 35.
Dr Rogers notes Ms Smith is reluctant to use medication unless absolutely necessary due to her perceived risk of side effects with any medication or procedure and he says some of this reluctance is justified given her previous history. He states because of the perceived risk of myopericarditis she is very reluctant to have a Covid 19 vaccination. He adds as she is a teacher and the vaccination has been mandated she has felt the threat of losing her position and this has markedly contributed to worsening her anxiety and she lost 16kg in weight. Dr Rogers records she underwent the cholecystectomy in January 2022 and she said she had been told this was due to her rapid weight loss.
Dr Rogers records that Ms Smith had a Covid 19 infection earlier that year but only had mild symptoms for three days. Dr Rogers advises:
“…on balance, in her case, I’m not convinced that Covid vaccination is warranted or in her best interests, given her low risk of severe illness, the fact that she has already had a Covid infection and tolerated it well, plus the small risk of cardiac side-effects from Covid vaccination including myopericarditis. I think vaccination would heighten her health anxiety/stress disorder to a very unhelpful level. I recommend against vaccination. She should be given an exemption.”
On 31 May 2022 Dr Rogers issued a letter to support Ms Smith be given a waiver against Covid vaccination long-term.[15]
[15] AALD-1 p 89.
On 5 July 2022 Dr Brednya records in his clinical notes “she helps her husband to run his business. Her mood is a bit better”.[16] The doctor records that a medical certificate was issued but counsel and I could not locate a copy of it.
[16] AALD-1 p 124.
On 25 July 2022 Dr Brednya’s notes say “COVID vaccination exemption certificate” and on 9 August 2022 it is noted that that documentation had been submitted last Thursday.[17]
[17] AALD-1 p 124.
Eventually after a few more enquiries it is recorded in Dr Brednya’s records that an exemption was granted until 15 March 2023.[18]
[18] AALD-1 p 126.
Another Mental Health Plan was completed on 6 February 2023.[19] The doctor added that “last year she had 10 sessions with psychologist and had CBT and psycho-education. Her mood improved significantly.” The diagnosis was still made of “anxiety/depression /PTSD”. Six sessions of CBT was recommended as treatment.
[19] AALD-1 p 52.
On 26 April 2023 Dr Brednya filled out the insurer’s questionnaire.[20] He was asked in question 2 the history he took on the first consultation in September 2021 and his reply is:
“She explained to me that she felt extremely anxious about receiving COVID vaccination. Her anxiety was due to possible side effects of vaccination especially cardiological”.
[20] ARD p 13 and Reply p 96.
Dr Rastogi
Dr Rastogi, psychiatrist, has provided a medico-legal report dated 24 April 2022 at the request of Ms Smith’s solicitors.[21] She says Ms Smith has not worked since September 2021 and she is on long service leave due to expire on 27 April 2022.
[21] ARD p 1.
The doctor states given her serious health issues and previous cardiac arrest and damage to her heart, she was always cautious and lost control of her life. She says that Ms Smith was trying to research the cardiac effects of the vaccine but she could not obtain clear advice. It had been suggested to her that she could be admitted to hospital under observation whilst receiving the vaccine, however, she advised that she gets triggered being in hospital with her pre-existing post-traumatic stress disorder and anxiety. Dr Rastogi records that she found the situation overwhelming, she felt she had no support and was isolated.
Dr Rastogi took the history that in November 2021 she received an allegation of severe misconduct from the respondent for not following the direction to be vaccinated. She said she was put under investigation and this was very stressful and she found the emails from the respondent intimidating, coercive and she felt ostracized and discriminated. She was not allowed to pick up her personal belongings from the classroom and she was threatened with arrest if she went on work premises.
It is noted that she continued to have anxiety attacks with palpitations, sense of hopelessness, worthlessness and she was concerned about the vocational uncertainty. She lost 16kg of weight over two months. She is fearful of having the vaccination and has a fear of death. Dr Rastogi records that she has now been provided with a medical exemption for vaccination. She is seeing her psychologist on a fortnightly basis.
Dr Rastogi diagnosed an adjustment disorder with anxious distress in the background of pre-existing post-traumatic stress disorder. The doctor found that:
“This impacted her capacity to work and the adjustment disorder with severe anxiety has caused significant memory deficit, loss of confidence and ruminations. Her depression and anxiety are maintained by vocational uncertainty, betrayal and being treated unfairly causing significant losses. This is challenging her ability to function as a teacher with fractured relationship and feeling isolated.”
Dr Rastogi opined that she is totally incapacitated and remains unfit to work given her current mental state, presenting with memory deficits, amotivation, poor drive, excessive fears, loss of confidence, avoidance behaviours, social scrutiny sense and anxious ruminations impacting her ability to function and multitask. The doctor said in the future she would have capacity to work with reintegrated support and her grievances addressed. She says if Ms Smith is terminated she is likely to decompensate with a poor prognosis emotionally, physically and vocationally with significant impairments. The doctor recommended further psychological counselling.
In answering question 5, Dr Rastogi says her employment is the main contributing factor to the aggravation of her psychological condition.
“The reasons being constant coercion and discrimination to receive vaccination as a mandatory requirement and possible threat to her employment with no support provided and misconduct allegations. She felt punished and discriminated whilst she was seeking clarity of vaccination due to potential impact on her pre-existing heart conditions. She felt the undue pressures and coercion magnified her anxiety and distress leading to anxiety disorder and panic attacks.”
In answering question 6 posed to her, Dr Rastogi found that her condition was not wholly or predominantly caused by the action of her employer in respect to promotion, performance appraisal, discipline and dismissal.
Dr Peter Young
Dr Young, psychiatrist, provided a medico-legal report for the insurer’s solicitors dated 13 June 2023.[22] He advises that Ms Smith is aged 46 and ceased work as a teacher on 27 September 2021 and remains certified unfit to work. At the time of his examination she was on leave without pay, having used her long service leave and sick leave in April 2022.
[22] ARD p 15.
Dr Young took a comprehensive history, which I have copied below:
“She said that at the outbreak of the COVID pandemic she did not feel especially stressed and was able to adapt to workplace changes such as working from home without difficulty. She said when vaccines became available, she was not especially concerned for herself and was not thinking about her own vaccination ‘because the focus was on the elderly’.
She said she felt concerned with the promulgation of the Department vaccine mandate, because of her perceived specific risk due to a past history of cardiac infarct and myocarditis. She discussed her concerns with her general practitioner, who advised her that she may be at increased risk and advised her to seek review and an opinion from a cardiologist. Although she attempted to make an early appointment there was an extended delay in being able see her cardiologist and during this time there were escalating communications from the department in relation to vaccine requirements. She said that she felt under pressure to comply but was unable to do so on the advice of her GP who provided her with an exemption certificate pending review by her cardiologist. She said that she communicated these issues to her employer but received little or no feedback from the department in relation to this and during this time began to feel increasingly anxious. She reported she was not sleeping due to fear about the vaccination and the effect of the mandate.
She lost her appetite and around 19kg in weight. Her mood deteriorated and she became persistently depressed, stating that she felt she was unable to get out of bed. She began experiencing acute abdominal pain and in January 2022 went to hospital where she diagnosed with cholelithiasis and underwent cholecystectomy.
Around this time, she received further notification of ‘severe misconduct for not following direction’. She felt further distressed by the notification and said that she attempted to communicate regarding this to the department but did not receive a response. Concurrently over this same period Ms Smith and her family all contacted COVID with very mild illness and recovery after two to three days.”
Dr Young records that Ms Smith was able to see her cardiologist in May and an exemption certificate was provided, but rejected by the respondent.
He states that she said she had hoped since the mandate has been lifted that she could return to work but her mood remains labile, she feels stressed and she remains withdrawn from activities and social interactions and she has lost her trust in institutions. She has attempted to further communicate with the respondent regarding the misconduct allegations but she has had no response to her emails. She says she cannot move past how she was treated.
Dr Young opines that if the outstanding disciplinary issues are resolved and an appropriate graded return to work program implemented, then she is likely to have a positive long-term outcome.
Dr Young diagnosed Ms Smith as having an adjustment disorder and her symptoms are an exacerbation of her pre-existing anxiety. He says, “employment conditions (imposition of the vaccine mandate) has been the main contributing factor exacerbating her condition.” In answer to question 10 he says, “the whole and predominant cause of her condition has been the action by the employer with the imposition of the vaccine mandate, including the consequential disciplinary issues.” He states she is currently not fit for pre-injury duties, and she would benefit from more structured treatment integrated with a return to work plan. Dr Young adds that Ms Smith is fit to commence a graded return to work plan, commencing at 8 to 10 hours per week with a graduated increase at appropriate levels. However, in answer to the last question, Dr Young says she currently has incapacity to work but he expects she could commence a return to work program.
Ms Smith’s statements and email correspondence
The reason I have commenced my summary of the documentation with the medical evidence, rather than Ms Smith’s statements, is because much of her statements contain irrelevant information which reads like a manifesto about mandatory vaccination. For instance, in her statement dated 13 October 2021 at [15] she states, “I believe the mandatory COVID vaccination order cannot be justified as it impinges on my liberties and rights that exist in Australia”. I have had to decide a number of psychological injury cases involving teachers and the exact same paragraphs (15 to 28, 30, 31, 33, 34, 36) appear word for word in other workers’ statements.[23] This is not a helpful way to present a case. Statements should reflect the applicant’s own words. However, Ms Smith has signed the statement which means she has adopted the contents and I must take the statements as being her evidence.
[23] Such as in the matter of Hajjar v Secretary, Department of EducationW6855/23
On 27 August 2021 Georgina Harrisson, Secretary of the Department of Education sent an email to all school based staff which I find provided information about the vaccination situation. For reasons discussed later in these reasons, I find that there was no element of discipline in this email.[24]
[24] AALD-A p 1.
On 2 September 2021 an email was sent to all school based staff from Yvette Cachia.[25] Again, I find the contents of this email was not of a disciplinary nature, it provided information and encouragement about getting vaccination.
[25] AALD-1 p 4.
On 23 September 2021 at 3.02pm the Minister for Health and Medical Research,
Brad Hazzard MP, made the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (the Public Health Order). In that Order the Minister directed that education and care workers must not carry out relevant work on or after 8 November 2021 unless the worker had:(a) two doses of a COVID-19 vaccine, or
(b) been issued with a medical contraindication certificate.
“relevant work” was defined in the Public Health Order as “work at a government school or non-government school”.
The email Ms Smith sent to the electoral office of Brad Hazzard on 8 October 2021 in the first section presents a narration of her concerns.[26] She explains her medical history and she says “I would like you to know that I am not an ‘anti-vaxxer’… I am highly supportive of and fully vaccinated in every other way”. I find this fact is borne out by her medical records showing she has been vaccinated for influenza in June 2019. Ms Smith in this email is explaining why she wishes to wait to consider having the Covid-19 vaccination, because of adverse effects being reported about cardiac issues.
[26] ARD p 69.
On 18 October 2021, Georgina Harrison issued Determination No 1 of 2021 under the Teaching Service Act 1980, Covid-19 Vaccination Evidence, the purpose of which was set out in [1.1] thereof as follows:
“The purpose of this Determination is to establish the requirement that employees of the Department must be vaccinated with two doses of a COVID-19 vaccine and provide evidence of that vaccination unless they are unable to be vaccinated because of a medical contraindication, as a condition of their employment with the Department.”
It applied to all employees of the respondent employed in Teaching Service. Clause [4.1] made it a condition of employment in the Teaching Service that an employee must provide, to the responsible person for their ordinary place of work:
“(a) vaccination evidence; or
(b) if the employee is unable to be vaccinated against COVID-19 because of a medical contraindication, a medical contraindication certificate.”
Clauses [4.2] and [4.3] of Determination 1 provided:
“4.2 All employees who work, or will be required to work, on a Department site to support the staged return of student cohorts to a Department school are required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 18 October 2021.
4.3 All other employees who attend, or ordinarily attend, a Department school for their work will be required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 8 November 2021.”
On 3 November 2021 Ms Smith was sent an email from the COVID-19 Ministerial Team, Public Health Response Branch. The email refers to Ms Smith writing about COVID-19 vaccination.[27] It is not clear if they are referring to her email of 8 October 2021. In this response it is noted that NSW Health Medical Advisor, Dr Sarah Khanlari, spoke with Ms Smith on 29 October 2021 to discuss her situation and the criteria that a medical practitioner must consider when issuing a medical contraindication certificate. The email also encouraged Ms Smith to contact Mr Ross Hawkey, Director HR Operations, Policies and Systems at the Department of Education for advice on her work options.
[27] ARD p 74.
On 18 November 2021 Fatima Benel from the Professional and Ethical Standards (PES) directorate emailed Ms Smith attaching a letter from the PES.[28] The letter is in the Reply.[29] It advised Ms Smith that she has not entered her vaccination status or provided a medical contraindication certificate in the Departments system (VACS). The allegations of misconduct were set out. All three allegations relate to the failure to provide vaccination status or medical contraindication. The letter notified possible outcomes. It was stated if the allegations of misconduct are sustained disciplinary action may be taken against you, including the placement of your name on the list of people not to be employed by the Department (NTBE List). Details were given for Ms Smith to provide a response and to receive support.
[28] ARD p 76.
[29] Reply p 112.
On 22 November 2021 12:31 PM Ms Smith sent an email to Fatima Benel, Department of Education and she stated it was not her official response to the allegations but she advised she was currently on long service leave. That she last attended school on 24 September 2021 and her leave starting officially on 5 October to 17 December 2021 and return to school not being until 28 January 2022. Ms Smith quotes the Department of Education Guidelines emailed on 1 October 2021 point 8.4 that if staff were on leave spanning 8 November 2021 they had to meet the requirement to be vaccinated before returning to their school site after leave. She also noted she had communicated this to the school on 5 October 2021 and to Yvette Cachia on 1 November 2021 and on 2 November 2021 the COVID taskforce replied that they had tried to exclude everyone on leave but some people still got the email. They confirmed she did not need to confirm her vaccination status until immediately before returning to school. Ms Smith says to Ms Benel in light of the above information she queried why she had been given the Vaccination Non-Compliance – Letter of Allegations, she emphasised that she had not failed to follow a direction for the above reasons.
On 22 November 2021 3.25pm Ms Benel emailed Ms Smith and apologised for the inconsistent messaging and asked if she intended to be vaccinated and if so what dates she had in mind and stating, “we may place the matter on hold as well as the expectation for a response to allow for your vaccination to be received”.[30]
[30] ARD p 78.
On 25 November 2021 1.40pm Ms Smith again emailed Ms Benel largely reiterating the contents of her earlier email. At 2.43pm that day Ms Benel responded by advising that the investigation will be placed on hold until she returns to school,[31] At 5.47pm Ms Smith responded and asked that the allegations and investigation be completely dropped.[32]
[31] ARD p 79.
[32] ARD p 80.
On 10 December 2021 the insurer wrote to Ms Smith to acknowledge her claim.[33]
[33] ARD p 81.
On 17 December 2021 the insurer emailed Ms Smith to advise the were unable to accept liability for her claim.[34]
[34] ARD p 82.
On 23 December 2021 1.14pm Ms Smith wrote to the insurer’s case manager, Ophelie, explaining her medical history, expressing her concern about the vaccine’s effect on the heart and that she has fear of the effects on her heart which has exacerbated her post-traumatic stress disorder to worse than it has ever been.[35]
[35] ARD p 83.
On 27 January 2022 received by email a letter from Darryl Currie, Executive Director of PES,[36] stating that she was currently the subject of a disciplinary investigation into allegations relating to your non-compliance with the COVID-19 vaccination requirements. Then information was given about the new Novavax vaccine and she was advised if she wanted to have this vaccine the allegations of misconduct would be placed on hold and after her second dose she would be able to return to duty with the respondent.
[36] ARD p 85.
On 18 February 2022 Amanda Naughton-Green emailed Ms Smith but the information therein seems to contradict earlier information asserting she was requiring her to show her vaccination evidence by 8 November 2021.[37]
[37] ARD p 89.
On 25 July 2022 Daryl Currie, Executive Director PES wrote to Ms Smith:
“In all of the circumstances, and in line with the changed COVID-19 environment including the Department’s current COVID-19 vaccination requirements, I have decided the matter will not proceed as a misconduct investigation. I intend to take remedial action and issue you with a warning in line with Section 93F (1) of the Teaching Service Act 1980.”
Mr Currie says the warning would stay on her PES file but not put on her personnel file. Ms Smith was informed she could return to her substantive position on 1 August 2022 and set out requirements to comply with such as mask wearing, take RAT tests and the like.
It needs to be borne in mind that Ms Smith has framed her case that her psychological injury was caused by events occurring in the period 27 August 2021 and 8 November 2021. The respondent contends that the Commission, therefore, cannot take into account or consider the events after 8 November 2021. I accept this submission because Ms Smith has not pleaded that the events after 8 November 2021 are part of the cause of her injury and also in Northern NSW Local Health Network v Heggie[38] the Court of Appeal found that reasonableness of a person’s actions is assessed by reference to the circumstances known to the person at the time the action is taken.
[38] [2013] NSWCA 255, Heggie.
The medical evidence summarised above gives a good insight into the factors leading to Ms Smith suffering a psychological injury arising out of or in the course of her employment with the respondent. I have quoted extensively from Dr Young’s history because it provides in my view a detailed description of her situation that is very fair and balanced.
In the matter of Davis v Department of Education I stated:
“It needs to be borne in mind that the outcome in this case does not turn upon whether the Government’s Covid-19 response and vaccine mandate were reasonable. These were lawful steps taken by the Government in response to a world-wide pandemic in which many people who contracted Covid-19 died. The steps taken were designed to minimise illness and death of members of the community, including to the school community made up of workers and children.”
This statement is also relevant to Ms Smith’s matter.
Dr Wood’s evidence
The evidence of Dr Wood is contained in his statement dated 31 May 2022 and he was cross-examined in the matter of Davis v Secretary, Department of Education.[39] The respondent agreed to the tender of this cross-examination in Ms Smith’s matter at the preliminary conference but Mr Grant objected to it the arbitration hearing. I admitted this transcript into evidence on the basis that counsel could make submissions as to the weight I afford it.
[39] W1987-22, Davis. Transcript is at AALD-A.
Because it is documented I am not going to reproduce all of his evidence, but I have summarised the main areas of his evidence. Many of the questions asked were to have him confirm the contents of the various emails, which are in evidence. I summarised his evidence in Davis as follows:
“In [7] of his statement, Dr Wood says that the Department, in sending out an email to all school-based staff in the morning of 27 August 2021, wanted to ensure that staff were kept updated on the Government’s intention to introduce the COVID-19 vaccination mandate, as the situation was moving quickly, and a public announcement was due to be made by the NSW Premier at 11.00am that day.
Dr Wood was referred to Attachment 2 of his statement which he acknowledged contained the wording that it was “…an update on that 27th of August 2021”, which said that all public and preschool staff were required to be fully vaccinated by 8 November 2021. Both emails were sent to all school based staff.[40] I find nothing turns on this fact as it would be unrealistic to expect a large employer such as the respondent to send individual emails to each employee.
[40] T 7.10.
Dr Wood said with reference to the email sent out on 8 September 2021 which reiterated that from 8 November 2021 all NSW school and preschool staff will be required to have received two doses of COVID-19 vaccine from 8 November 2021.
Dr Wood was questioned about Attachment 5 to his statement, the “COVID-19 Vaccination Guidelines” (the Guidelines) issued by the respondent, and in particular to [8.1], [8.8], and [8.9] thereof, which provided:
(a)no special leave provisions available to those who refuse to comply with the Guidelines;
(b)that if staff were found to be, or suspected of being, in breach of the Public Health Order, the NSW police would be called and infringement notices or criminal charges may be laid, and
(c)that if staff were found to be, or suspected of being, in breach of the Guidelines, then investigation and disciplinary action may be undertaken by the department, including termination of employment.
Dr Wood stated that the Professional and Ethical Standards group was responsible for disciplinary matters, and Mr Daryl Currie was the head of that group. The Workplace Relations Group was responsible for industrial relations. Dr Wood could not give evidence about the reasons made for decisions by those groups.
Mr Dodd asked Dr Wood whether the directions of his colleague in the disciplinary section differentiated between all teachers and any particular teacher. Dr Wood stated that the Department’s policy would apply to all teachers, but that there were opportunities for individual teachers to submit a medical contraindication if they had a medical condition which would prevent them from being vaccinated to make an application. As far as he was aware, the only exemption was through a medical contraindication[41].
[41] T20.20.
Dr Wood said that a breach of the code of conduct could result in disciplinary matters, the size and scale of which would depend on the nature of the breach. The code of conduct would be the document that outlines the expectations of employee behaviour within the Department[42]. Dr Wood agreed that in August and September 2021 non-compliance with the requirement to be double vaccinated by 8 November 2021 resulted in the application of disciplinary procedures.
[42] T21.
Dr Wood said that thought was given in his committee as to how long the pandemic was going to continue. Policies and procedures that were put in place to support schools at particular points in time were not necessarily given end dates. Policies were revised as circumstances changed.[43]
[43] T22.
Mr Dodd asked Dr Wood about the effect on a worker’s employment record if they were disciplined and Dr Wood responded that it was outside his area of expertise what would be recorded. He was pressed about the situation if someone was terminated as a result of disciplinary action, whether that would remain on that person’s record and could not be erased over time. He answered, “I understand it probably would be.”[44]
[44] T23.23.
Dr Wood would not speculate about the number of teachers who were employed by the Department as at September 2021 when Mr Dodd suggested that it was about 50,000… Dr Wood stated he did not have specific details of the number of teachers who had complied with the direction to be double vaccinated by 8 November 2021 but said that they had a very high vaccination rate, up to 90% of staff were fully vaccinated and compliant. He said the actual number of non-compliance was actually very small, he believed in the hundreds.[45]
[45] T25-26.
Mr Dodd asked about why arrangements were not made for the unvaccinated to work remotely and Dr Wood said that was a matter for the Workplace Relations Group to answer...
Dr Wood in answer to further questions said that he was not qualified to answer as to whether it would have been difficult for the Department to cater for the couple of hundred, within the many thousands of staff of the Department, to teach from home. He said that a number of people who had different responsibilities would have to address that proposition. These included the Our People group, and the Employee Performance and Conduct Unit, and that to give the name of a person to provide an answer to the proposition would be difficult because it crossed over a number of areas.
Dr Wood confirmed that the vast majority of the Department’s staff work in schools. He was asked about his experience as a teacher for a period of time before going to other areas, which might include School of the Air going to remote and regional communities. He said that from his experience, teachers of the School of the Air work from a location in Bourke. He did not have the information to say if any of those teachers worked remotely.
Dr Wood stated he was moved from the Covid taskforce in February 2022.[46] He said that as of May 2022 he was aware of teachers being directed to work at schools even though they were not double vaccinated. He said disciplinary proceedings were paused.
[46] T33.20 not transcribed in the transcript but clear from sound record.
Dr Wood was asked about attachment 11 to his statement and acknowledged that it had a commencement date of 12 November 2021, and that the contact person listed thereon was the Director, Strategic Initiative and Projects. He stated he was not aware of who was holding that role at that point in time.
In re-examination Dr Wood was asked when he learned that the Public Health Order was to be introduced. He was not sure but said that it was “very likely to have been very close to the 27th”. He added at that point in time government decisions were being made and were implemented “very quickly”.[47]
Dr Wood also gave evidence about the work streams that were commenced within the Department to react to and implement the requirements of the Public Health Order, including:
(a)the establishment of the vaccination policy and the associated resources to support Principals and other employees manage this in the department to enact a policy;
(b)an ITD technology work stream to establish the Vaccination Attestation and Confirmation system;
(c)legal department, who are responsible for interpretation of the Department of Health and other legal matters;
(d)work safety and health and employee wellbeing area who dealt with medical contraindication, and
(e)employee performance and disciplinary conduct process.
Dr Wood advised it was generally the case that when students returned to in-classroom learning, they had in-class instruction.”
[47] T 36.05.
Submissions
As the submissions have been recorded I will not summarise them verbatim. The main thrust of each parties submissions is discussed below.
Mr Dodd’s central submission is that it was not the mandate per se, but the way the Public Health Orders were implemented by the respondent that was not reasonable. He submitted that:
(1) Ms Smith was now aged 47 and she had worked for the respondent for approximately 23 years and in none of that time was she the subject of any disciplinary action until the events in 2021.
(2) Ms Smith continued her employment with the respondent despite her past health issues, which I have set out above.
(3) The Public Health Order did not require unvaccinated teachers to be disciplined, just that they could not work at schools. He submitted that the respondent issued directions requiring vaccination and advising that non-compliance meant teachers could be subject to serious disciplinary proceedings.
(4) The respondent actually made an allegation against Ms Smith that she had been guilty of serious misconduct.[48] It was submitted that the respondent’s “hard headed approach” was to threaten dismissal and to do this in a way that it would affect her future employment if she was dismissed for serious misconduct.
(5) There were other things that the respondent could have done such as explored in Dr Wood’s evidence, such as put people on suspension, or on hold until the covid situation blew over, or have unvaccinated teachers work remotely or be utilised in policy areas. Mr Dodd submitted in a workforce over 40,000, and with those not vaccinated being under 1000, then alternatives could have been found instead of threatening dismissal.
(6) Labelling Ms Smith’s conduct as “serious misconduct” would have a detrimental effect on her employment prospects, and one would have thought this terminology would have been reserved for heinous events involving students.
(7) The cross-examination of Dr Wood took place in August 2022 so the respondent has had ample opportunity to put on evidence for persons, such as Mr Currie, to explain why such decisions were made and why they were reasonable decisions.
(8) The anxiety that Ms Smith was suffering from 29 September 2021 was due to the requirement to be vaccinated, given her prior health issues. It was the way the order was administered by the department that was not reasonable.
(9) Dr Young when giving his diagnosis states “these health related anxieties have been further triggered by the imposition of the vaccine mandate and Ms Smiths’ fear that she was at excess risk due to her history of cardiological conditions.” Dr Young also states that “the whole or predominant cause of her condition has been the action by the employer with the imposition of the vaccine mandate, including consequential disciplinary issues that have occurred.” Mr Dodd submits that Dr Young’s opinions support his argument that it was the way the mandate was implemented by the respondent that caused the injury.
(10) Up until the letter telling her she had been guilty of misconduct, Ms Smith thought she was compliant. Because she had been told it was only when she was to return to school, that she had to notify her vaccination status.
(11) She tried to give the respondent medical contraindication information.
(12) Dr Rastogi provides an opinion that the condition has not been caused by dismissal, but Mr Dodd says while dismissal proceedings had not been commenced by 8 November 2021 there was a threat to her continued employment.
[48] Reply p 112 Letter from PES dated 18 November 2021.
Mr Dodd says the respondent has not taken account of Ms Smith’s particular circumstances and not acted as a reasonable employer at all.
He referred to the desirability of comity between various Member decisions in similar cases. However, I consider each case needs to be determined on its own facts as psychological injury cases are fact sensitive. Each applicant has a different medical history and it is trite to say, but true, that people react differently to events. Also, in the various cases that I now have had to decide, and in those decided by other Members of the Commission, different counsel have appeared and the submissions are not identical in each case. Even where the same counsel has appeared in multiple matters their submissions are not identical. Furthermore, in some cases injury is in issue and others not.
He submitted that the respondent has not discharged its onus of proof to show the psychological injury was wholly or predominantly due to discipline because it was the way the Public Health Order was implemented, and to suggest this was discipline is another example of unreasonable conduct by the employer.
Mr Grant’s primary submission was that the period of time to consider is from 27 August 2021, when the Public Health Order was made, up to 11 October 2021, when she was diagnosed with her psychological injury was the relevant time and he submitted events after this time are not relevant. The condition that she had reasonably under control as of August 2021 was post-traumatic stress disorder, but that condition was aggravated and because it is an aggravation of disease s16 of the 1987 Act applies and the deemed date of injury should be 11 October 2021.
Mr Grant submitted an alternate way to look at the matter is that the events from 27 August 2021 to 11 October 2021 have led to her injury and she has submitted she is totally incapacitated.
Mr Grant submits that the ARD refers to injury as being “an adjustment disorder with anxious distress in background of pre-existing post-traumatic stress disorder”. He submits that this seems to come from Dr Rastogi under the heading diagnosis and opinion in her report. He says Dr Young referred to her pre-existing state being aggravated by the vaccine mandate.
The reason why he relies on 11 October 2021 as the deemed date of injury is the medical certificate from Dr Brednya where the doctor makes reference to the date of injury of 11 October 2021 and the doctor expresses the view that from this date she was unfit for her employment.
The point of the respondent’s approach is that Ms Smith is well qualified and one could understand because of her pre-existing conditions that she would have been anxious about the mandate. Mr Grant submits that by reference of her statement dated 13 October 2021 she focuses on the requirement she be vaccinated and she does not focus on unreasonableness on behalf of the department. He submits that her entire focus of her statement is her reaction to being required to be vaccinated. He refers to [15] that I quoted earlier about the impingement of her liberties and also [28].
Mr Grant submits it is quite clear that her state of mind in October 2021 was that she was opposed to the vaccine and she felt it was unreasonable that she was required to be vaccinated. She was aware at that time of availability to get medical exemptions but she was aware at that time she did not qualify for such an exemption.
Mr Grant argues that, therefore, her condition was triggered by the mandate itself and the approach by the department in this period.
She worked to 24 September 2021 when school holidays came into play, so Mr Grant says her psychological condition had not come fully into play at that time until 11 October 2021. He submits she was aware that there would be implications if she was not vaccinated and her employment would have been put in jeopardy.
Mr Grant relies on the decision of Wood DP in Webb v State of New South Wales[49] at [139] one needs to look at the entire process. This process started on 27 August 2021 with the email from the Department. He submitted that you cannot look at incidents in isolation. So incidents from 27 August 2021 onwards come within “discipline” in s 11A.
[49] [2019] NSWWCCPD 50, Webb.
In relation to the “wholly or predominantly” aspect of s 11A, Mr Grant repeated his earlier submission that from reading Ms Smith’s statements that her focus was on the requirement to be vaccinated. He referred to Dr Young’s opinion that the whole or predominant cause has been the imposition of vaccine mandate including the consequential actions. Mr Grant submits that the only evidence against this is Dr Rastogi, but he says Dr Rastogi takes an argumentative tone and she “should be marked down for this”. Mr Grant submits Ms Smith underwent her gall bladder surgery but Dr Rastogi she makes no reference to this. He submits Rastogi is not being careful in her history taking. However, he later withdrew this submission when Mr Dodd pointed out that the doctor did have this history. Mr Grant submitted that when Dr Rastogi was asked about wholly or predominantly, she says her condition has not been caused by discipline but he says this seems in contradiction to when Dr Rastogi says employment is main contributing factor due to coercion and discriminatory action of employer.
Mr Grant submitted that Dr Rastogi uses terminology in relation to the actions of the Department being “intimidating” and “coercive” and he submits that a fair reading of material from 27 August 2021 that the respondent was complying with the Public Health order and couldn’t be said those communications were intimidating or coercive or she was being ostracized, therefore he submitted that one cannot accept Dr Rastogi’s opinion. He submitted that Dr Brednya in the certificate refers to the actions of employer and that Ms Smith thought she might lose her job, so he submits all the action of the respondent all relates to discipline.
Mr Grant submits that it is trite to say the conduct of the respondent needs to be looked at through the eyes of a reasonable observer. He argues that actions from August to November 2021 were a period of time when the country was coming out of lockdowns. He says Ms Smith was aware of 27 August 2021 Public Health Order, and that the department was obliged to comply with this. So he says Ms Smith knew it was mandatory to be vaccinated to teach.
Mr Grant submitted and Mr Dodd agreed that there is one aspect of this statement that is incorrect where she says she was totally incapacitated from 27 August onwards she worked, but in her later statement she says she worked to 24 September 2021.
He submits that Ms Smith sets out in her statement what happened in this period such as at 1 October 2021 she had email from the school principal. He submits nothing between August and October was unreasonable. He says by the Teaching Services Act the interests of the students are paramount. He then argued that the steps between then and November were not unreasonable.
He submits all the respondent did was to ensure its teachers were vaccinated in accordance with the Public Health Order. He submits that other than saying its unreasonable for department not to follow the Public Health Order, there is nothing unreasonable. Therefore, he submits the s 11A defence succeeds.
In terms of capacity Mr Grant submitted there is reference to Ms Smith supplying husband with support in his business. I note this is referred to briefly in the general practitioner’s notes but I find there is insufficient details to draw any conclusions as to her work capacity. He did concede that when she precisely assisted her husband is not clear. Mr Grant says it is consistent with Dr Young’s finding that Ms Smith is fit to commence a graded return to work plan. He argues this highest the medical evidence reaches and so, the Commission could find she could do suitable duties for 8-10 hours per week.
In reply Mr Dodd submitted:
(1) Dr Wood’s statement is in the reply and the Commission should take into account his evidence in the transcript;
(2) that Dr Rastogi’s evidence should not be dismissed as suggested by the respondent as the reference to coercion and discrimination are what Ms Smith perceived;
(3) Dr Gertler advised Ms Smith might have deteriorations on short term basis and it does not affect fitness to work as teacher. He said this was in 2018 and the cardiac complication made her more vulnerable to stresses to have hospital treatment. Mr Dodd submitted it was suggested that she have the vaccine in hospital but this would have been stressful as well. He argues that Dr Rastogi found that although she had pre-existing post-traumatic stress disorder she was unable to get clear advice relating to the side effects of the vaccine so, in that circumstance, it made her more vulnerable;
(4) Mr Dodd submitted that Public Health Order did not provide she had to be vaccinated, just that she could not physically attend school, and
(5) in relation to the reference on 5 July 2022 Ms Smith was supporting her husband in his business, Mr Dodd submitted that Dr Brednya at this time was still certifying her unfit for work with no current work capacity and she was having continuing psychological treatment.
The applicant made submissions about the Court of Appeal decision in Dawking stating the issue in the present case of Ms Smith the only issue is s11A which was not the subject of appeal in Dawking. The submissions deal with the argument about comity. The respondent submitted that the Court of Appeal’s decision in Dawking has no direct application to Ms Smith’s case. The respondent also made submissions about comity. I have dealt with the argument about comity at [76] above. The respondent objects to the applicant making further submissions about “reasonableness” on the basis no leave was sought to do so. I have not taken them into account.
Determination
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.”
The respondent has the onus of proof to establish a defence under s 11A. In this case it is relying on “discipline”. In Webb the Deputy President found at [102]:
“The fact that there was a potential for action with respect to discipline is not sufficient to establish that the action conducted by the respondent in calling the meeting and investigating the complaint could be categorised as disciplinary.”
In Webb reference was made to Heggie at [59] where Sackville AJA stated:
“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.”
However, in Ms Smith’s case the way the matter has been pleaded and the point taken by the respondent is that events after 8 November 2021 cannot be taken into account as causing Ms Smith’s psychological injury. Therefore, the later events are not to be considered in relation to the s 11A defence. This excludes the evidence about the investigation by the PES.
In Webb at [109] it was stated;
“However, in my view, the above passages establish that some part of the process of the actions taken by or on behalf of the employer must have the characteristic of being disciplinary in nature. Each case must be determined on its own facts. In the present case, it is true that the respondent may have instigated a disciplinary process had the allegation been proved. However, in the circumstances where the actions taken by the respondent, that is, where the appellant was not being investigated about any breach of conduct or any blemish in his performance in the workplace, what may or may not eventuate cannot be relied upon to change the characterisation of the actions that did take place.”
The applicant in Webb pleaded that his psychological injury was due to one meeting where he was told of allegations concerning which the employer had an obligation to investigate. At [118] the Deputy President in Webb said the Arbitrator erred by taking into account the possibility of disciplinary action, which had not occurred in characterising the action which did occur.
While I acknowledge the fact sensitive nature of particularly psychological injury cases, and the facts are different in Ms Smith’s case to Webb, it strikes me that the respondent’s actions in the first period argued by Mr Grant, from 27 August 2021 to 11 October 2021 cannot be viewed as “with respect to discipline” when you examine what the respondent’s conduct was in this period.
The respondent’s conduct in this period comprised of the following:
(a) On 27 August 2021 Georgina Harrisson, Secretary of the Department of Education sent an email to all school based staff which provided information about the vaccination situation.[50]
(b) On 2 September 2021 an email was sent to all school based staff from Yvette Cachia.[51] It provided information and encouragement about getting vaccination.
(c) On 1 October 2021 Ms Smith received an email from her school principal outlining the return to school information and it attached the Department’s Vaccination Guidelines. This email is listed in the chronology at the end of Ms Smith’s statement dated 13 October 2021 but I have not been able to find a copy of the email.
(d) On 4 October 2021 Ms Smith received an email from the Jen White, Acting Principal Floraville Public School in relation to the need to notify a teacher’s vaccination status and explaining how that is done.[52]
(e) Ms Smith responded on 5 October 2021 to Jenny Barclay, the Relieving Deputy Principal of Floraville Public School, by pointing out point 8.4 of the Guidelines says staff who are currently on a period of leave that spans 8 November 2021 did not have to meet the requirement to be fully vaccinated until before returning to school. Ms Smith advised she was on long service leave until 17 December 2021.[53]
(f) On 6 October 2021 Ms Barclay sent an email to Ms Smith thanking her for her email and saying, “I hope you are well”.[54]
(g) There was no other correspondence with Ms Smith before 10 October 2021, although in this period she has said she sent 27 emails with no return correspondence.[55]
[50] AALD-A p 1.
[51] AALD-1 p 4.
[52] ARD p 68.
[53] ARD p 67.
[54] ARD p 67.
[55] ARD p 50.
It cannot be found that the respondent’s conduct in this period was unreasonable as they were implementing the Public Health Order. It is reasonable that they inform teachers the how to get vaccinated, how to upload their status to the system, and how they have until 8 November 2021 to do so. However, I find following Webb these steps were not in respect to discipline. Ms Smith at this point in time was not being investigated and the time had not expired for her to advise her vaccination status. She had not been threatened with disciplinary action. At this point in time up to 10 October 2021, while she may have been worried about the effect on her employment, the respondent had not actually threatened her employment.
I raised this proposition with counsel at the hearing and Mr Grant said the concept “with respect to discipline” requires me to look at the whole process. But he had submitted in the first limb of his submissions what occurred in this period were the only relevant events to look at. I find that Ms Smith had developed her psychological injury in this time period because on 11 October 2021 she had been diagnosed by Dr Brednya as having anxiety, depression and post-traumatic stress disorder. The doctor stated on his medical certificate, “Recently under pressure to have COVID19 vaccination. She has underlying heart condition and is anxious about possible side effects /complications of vaccination.” The doctor also stated, “Her employer does not accept her decision and she is threatened she will loose [sic] her position”. However, when one looks at the actual conduct of the employer in this period she had not been threatened with the loss of her position. For all anyone knew at that time the covid situation could have ended, or the Department in the future may have chosen to take a different course of action than threatening the loss of her position. Heggie states one needs to consider the objective state of knowledge at the relevant time.
I consider for these reasons there is a powerful argument that Ms Smith developed her psychological injury in this period due to the conduct of the respondent, that was not in respect to discipline. Mr Grant at one point endeavoured to make a submission that she was reacting to the Public Health Order or mandate and he cited the inflammatory parts of her statement about deprivation of liberty etc. However, the respondent has conceded “injury”.
However, Mr Dodd did not seem to embrace the interpretation I have set out above. So, I consider it prudent to not to basis my determination on such a basis.
Mr Grant’s alternate submission was that only the conduct of the respondent in the period 27 August 2021 to 8 November 2021 was relevant and the respondent’s conduct in this period was reasonable. Mr Dodd asserted it was not reasonable because it was the way the Department of Education sought to implement the mandate that was unreasonable. He submitted that the Public Health Order did not require the Department to take any action except that staff who were unvaccinated by 8 November 2021 were not to enter school premises.
In this period, on 18 October 2021, Georgina Harrison issued Determination No 1 of 2021 under the Teaching Service Act 1980, Covid-19 Vaccination Evidence, the purpose of which was set out in [1.1] thereof as follows:
“The purpose of this Determination is to establish the requirement that employees of the Department must be vaccinated with two doses of a COVID-19 vaccine…” (my emphasis)
On 1 November 2021 Yvette Cachia, Chief People Officer, of the respondent emailed Ms Smith.[56] This email advised that Ms Smith had not completed her online declaration, provided her principal with vaccination evidence or provided a medical contraindication certificate. It is stated that:
“it is now a condition of employment for all Teaching Service Act and Education (School Administrative and Support Staff) Act employees of the NSW Department of Education to be fully vaccinated against COVID-19 and to provide evidence of compliance with the COVID-19 vaccination schedule (or approved medical contraindication certificate) to the department.” (my emphasis)
[56] ARD p 71.
This email set out the consequences of non-compliance including referral to the PES for them to commence an investigation, inability to attend school from 8 November 2021 and that if you attempt to enter the school you will be reported to the police. Also in bold in the email it states, “failure to comply with this direction could lead to disciplinary action, including termination of your employment”.
It is relevant that this email is addressed to Ms Smith personally. Unlike the earlier emails which were sent to all staff and, as I found, were of an informative character, this email I find is comes within the concept with respect to discipline.
Ms Smith refers in her emails to having received an email from the COVID taskforce on 2 November 2021 saying they tried their best to exclude everyone on leave but still some people got the email. She was told she did not need to confirm her vaccination status until immediately before returning to school and the taskforce said they would add her name to the list so she does not get the next email.[57]
[57] RAD p 75.
I accept Mr Dodd’s argument that these two communications from the Department went beyond the Public Health Order. The Public Health Order did not require or mandate that teachers had to be vaccination, just if there were not they could not attend for work at school. These two communications from the respondent use language of compulsion, that it was now a condition of her employment that she be vaccinated.
Both counsel focused on reasonableness. Mr Dodd submitted that the respondent could have made other arrangements for her employment away from school premises. I consider his suggestion about redeployment to curriculum development to not be realistic as there would have been other staff occupying those positions, similarly the idea of working in the school of the air is not realistic. The proposition that Ms Smith could have worked remotely I consider is also not viable because the children would have been in the classroom and would need supervision and Ms Smith was a grade 2 teacher so effectively there would have to be another teacher in the room. It is one thing that during the lockdowns children were taught remotely from their homes, where they would have been individually supervised by their parents, whereas in Mr Dodd’s suggestion a whole classroom of children would have had to look at the teacher on a screen, which I find is just not a realistic approach for primary school children.
However, Mr Dodd did submit that the respondent could have just stood down the unvaccinated teachers. I accept in the case of Ms Smith that would have been a reasonable approach, particularly given that she had expressed her health concerns to the department and also, as Mr Dodd submitted, that she had been employed over 20 years and did not have a blemish on her record.
As I have noted this email from Ms Cachia was addressed to Ms Smith personally. I find it would have been reasonable for the department to take into account her individual circumstances at that point. These were facts known to the respondent. Also, I find it unreasonable that such an email was sent to her when she had already pointed out to the respondent via her Principal that the Guidelines had said she would have until she returned to school to indicate her vaccine status. The Department knew she was on long service leave at the time when this email was sent. I find it was not reasonable not to wait until she was due back to school to liaise with her. I find that the COVID taskforce email of 2 November 2021 acknowledges that she should not have received this email because she was on leave. However, it is evident she was distressed due to conflicting messages she received. The COVID task force was part of the Department of Education.
Notwithstanding, I have found some of the respondent’s conduct in the period 27 August 2021 to 8 November 2021 was reasonable, I find that this action of the respondent, which actually for the first time did threaten her employment, in Ms Smith’s case was unreasonable. It is pertinent that this email was received by Ms Smith only a short time after she was diagnosed with a psychological injury, and vulnerable because of her prior medical history. I accept Mr Dodd’s submission when Dr Rastogi was referring to her feeling coerced she was referring not just to the Public Health Order mandating teachers to be vaccinated but by this implementation by the respondent.
The respondent has the onus of proof. In Heggie Sackville AJA stated:
“The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.”
I find the respondent more likely than not believed it was acting in good faith to get as many teachers vaccinated as possible. But in Ms Smith’s case, because of her particular circumstances, for the reasons discussed above I find the respondent has not discharged its onus of proof to establish the respondent’s conduct was reasonable and the s 11A defence fails.
Weekly compensation
The claim made is pursuant to s 36 and s 37 of the 1987 Act on the basis of Ms Smith having no capacity for any employment from 9 November 2021 to date and ongoing. Mr Dodd says there is no medical evidence presently before the Commission asserting to the contrary.
Mr Dodd submitted that Dr Young found she was unfit to return to duties and he proposed she needs structured treatment and the respondent to make a graded return to work plan. Mr Dodd submits that the respondent has not implemented this. I accept this submission and reject that of Mr Grant. The conditions that Dr Young considered to enable Ms Smith to exercise capacity for employment have not yet occurred.
Mr Dodd submits that Ms Smith’s PIAWE should be that as set out in the ARD, noting the respondent has not put on a wages schedule. There is only $4 per week difference in their figures. In the Reply there is a document titled “PIAWE detail” but it looks at the 52 week period from 16 October 2020 to 28 October 2021, whereas the claim for weekly benefits starts from 8 November 2021. Her ordinary hours per fortnight were 56. I cannot check the parties’ respective calculations from this document, which has a different PIAWE figure on it different to both parties’ submissions. Neither party has explained their calculation therefore, I propose to use the figure in the ARD $1,656.54.
In the first 13 weeks Ms Smith is entitled to 95% of her PIAWE, which is $1,573,71 and thereafter 80% of her PIAWE, which is $1,325.23. The claim is still in the second entitlement period in s 37.
Accordingly, I order that the respondent pay Ms Smith from 9 November 2021 to 7 February 2022 at the rate of $1,573.71 per week and from 8 February 2022 to date and continuing at the rate of $1,325.23 per week. The respondent is to have credit for any payments made in the above periods.
I note the ARD included a claim for future medical expenses however, as I explained at the preliminary conference the Commission will not make an order in relation to future treatment based on a medico-legal report without the particular treatment being claimed and disputed by the insurer. Neither party made submissions about such a claim.
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