Svitek v Canterbury-Bankstown Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Svitek v Canterbury-Bankstown Council [2023] NSWPIC 408
APPLICANT:	Thomas Svitek
RESPONDENT:	Canterbury-Bankstown Council
Member:	John Turner
DATE OF DECISION:	15 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly compensation pursuant to sections 36 and 37 as well as medical expenses pursuant to section 60; applicant alleged that he sustained psychological injury due to bullying and harassment and unfair treatment; whether the applicant sustained an injury pursuant to section 4(b); main contributing factor; section 11A(1) in respect to discipline, dismissal and/or performance appraisal; Attorney General’s Department v K considered and applied; Held – the applicant sustained a psychological injury arising out of or in the course of his employment on the deemed date of 20 September 2021; the applicant’s employment was the main contributing factor to his injury; the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline, dismissal and/or the provision of employment benefits; the applicant has had no current work capacity from 20 September 2021 to date and has no current work capacity.
determinations made:	The Commission determines: 1. The applicant sustained a psychological injury arising out of or in the course of his employment on the deemed date of 20 September 2021. 2. The applicant’s employment was the main contributing factor to his injury. 3. The applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline, dismissal and / or the provision of employment benefits. 4. The applicant has had no current work capacity from 20 September 2021 to date and has no current work capacity. The Commission orders: 5. The respondent is to pay the applicant the following: i) $1,154.72 per week from 20 September 2021 to 30 September 2021 pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act); ii) $1,168.46 per week from 1 October 2021 to 20 December 2021 pursuant to s 36 of the 1987 Act; iii) $983.96 per week from 21 December 2021 to 31 March 2022 pursuant to s 37 of the 1987 Act; iv) $1,002.06 per week from 1 April 2022 to 30 September 2022 pursuant to s 37 of the 1987 Act; v) $1,035.83 per week from 1 October 2022 to 31 March 2023 pursuant to s 37 of the 1987 Act; vi) $1,078.72 per week from 1 April 2023 to date and continuing pursuant to s 37 of the 1987 Act, and vii) the respondent is to have credit for sick leave paid to the applicant for the period from 20 September 2021. 6. Award for the applicant on the claim for medical expenses pursuant to s 60 of the 1987 Act. 7. The respondent is to pay the applicant’s reasonably necessary medical expenses pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Thomas Svitek, the applicant, alleges that he sustained a psychological injury on 20 September 2021 (deemed) due to bullying, harassment and unfair treatment by Canterbury-Bankstown Council, the respondent.
In these proceedings the applicant seeks weekly benefits compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) from 20 September 2021 to date and continuing. The applicant also seeks the payment of past medical expenses, general practitioner consultations (GP), pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The following issues are in dispute:
(a)    whether the applicant has sustained a psychological injury arising out of or in the course of employment with the respondent;
(b)    whether employment was a substantial contributing factor to any psychological injury;
(c)    if the injury is in the nature of a disease, whether the disease was contracted or aggravated in the course of employment and whether employment is the main contributing factor to the contraction or aggravation of the disease;
(d)    whether any psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the respondent with respect to discipline, dismissal, transfer and/or the provision of employment benefits;
(e)    entitlement to weekly benefits compensation, and
(f)    whether medical or related treatment expenses are reasonably necessary as a result of a compensable injury.
The parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $1,215.49.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation conference/arbitration hearing before me on 6 June 2023. Mr Lachlan Robison, counsel, instructed by Mr Andrew Tohme, solicitor, appeared for the applicant, who was present. Ms Lyn Goodman, counsel, appeared for the respondent, instructed by Ms Jessica Maiuolo. 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.

EVIDENCE

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; and
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 12 May 2023 filed by the applicant;
(d)    Application to Admit Late Documents dated 31 May 2023 filed by the respondent, and
(e)    Application to Admit Late Documents dated 8 June 2023 filed by the applicant.

Oral evidence

Neither party sought leave to adduce oral evidence.

Summary of evidence

It is the applicant’s evidence that in 2019 Mr Gary Starr (Mr Starr) had tried to dismantle his position and replace him with a casual employee Rachel Fang.[1]
[1] ARD p 2.
It is the evidence of Mr Starr, Manager of Community and Cultural Services with the respondent, that the applicant was employed by the respondent as an Administration Officer in the Library Administration Team which fell within his directorate. The Library Administration Team reported directly to Mr Starr. That following a council merger in 2017 the team was the subject of a structure review. Mr Starr centralised the Library Administration Team into one team working together at Canterbury Bankstown Library and was in the process of creating an entirely centralised Administration Team within his directorate which included the Library, the Arts Centre, the Meals on Wheels Programme, and the Arts Centre. Following the amalgamation some of the processes were streamlined. Some of the new processes and corporate structure were likely different to those which the applicant was accustomed to prior to the amalgamation.
It is the evidence of Mr Starr that he reviewed the Library Administration Team structure as a whole and reviewed the tasks allocated to that team. That he made an assurance to everyone within his directorate including the applicant that they would not lose their jobs following the amalgamation. As an interim measure and to ensure that the applicant could remain gainfully employed with the respondent, Mr Starr assigned some of the courier duties, which involved delivering books to elderly persons homes, to the applicant. It is Mr Starr’s evidence that the applicant never expressed any concerns about performing those tasks, never objected to performing them and appeared happy to perform them.
It is Mr Starr’s evidence that at the time, there were two other team members in the Library Administration Team. Their workload was easily manageable, and they were both working efficiently. Mr Starr formed the view that the Library Administration Team was managing comfortably with only two team members, however Mr Starr had no intention of getting rid of any team members and was committed to ensuring every team member in his directorate would remain gainfully employed.
It is Mr Starr’s evidence that as part of the overall review, Mr Starr asked each of the library team members to put together a list of their duties and the average time taken to complete those duties. This was not limited to the applicant. Every team member in the Library Administration Team was asked to do this.
Mr Starr recalls speaking to the applicant about an opportunity for him to move into the Age and Disability Team so that he could continue to perform the home library deliveries that sat within the Age and Disability Team. To Mr Starr the applicant appeared very happy to do those sorts of tasks. Mr Starr had also received positive feedback from various parties who were part of the home library service and the meals on wheels programme about the applicant. It is Mr Starr’s evidence that in a meeting in or around October 2019 he put this to the applicant as a proposal for him to consider. Renata Rekiel (Ms Rekiel), Coordinator for the Age and Disability Team, was present at the meeting. Mr Starr denies that the applicant was directed to take this role or that he was directed to change teams. The applicant declined the role. Mr Starr denies that the applicant made comments in the meeting which suggested that he was not happy about the proposal or that he felt he was being pushed or forced into a decision.
Mr Starr does not recall in the meeting Ms Rekiel making any comment to the applicant to the effect of, "Why are you being so difficult." Mr Starr also does not recall making any comments to the effect "I can move you anywhere I like". Mr Starr does state that he had in past general staff meetings indicated that as Unit Manager he had the authority to move staff to ensure services are met.
It is the evidence of Ms Rekiel, Coordinator of Programmes and Partnerships for the respondent, that she attended a meeting with the applicant and Mr Starr in October 2019. Ms Rekiel recalls that at the meeting Mr Starr put a proposal to the applicant to move to the Age and Disability Team to operate daily, library branch trip service if he wanted to. The applicant was not forced or pushed into making a decision. It is Ms Rekeil’s evidence that it was a suggestion and that the applicant was not directed by Mr Starr to change teams. Ms Rekiel denies making any comment to the applicant in the meeting to the effect of "Why are you being so difficult." Ms Rekiel recalls that at the time of the meeting, the Library Administration Team was under review and Mr Starr was completing a review of tasks and duties within the team.
It is Mr Starr’s evidence that from around October 2019 until March 2020 (Covid-19 lockdown), the applicant provided great support to the respondent’s meals on wheels service and performed both courier duties and library administration duties. According to Mr Starr the applicant did not raise any issues or concerns about completing those duties at any point between October 2019 and March 2020.
Mr Starr denies any sort of intention or attempt to remove the applicant from his position.
It is Mr Starr’s evidence that in September 2020, the applicant experienced some sort of issue with his vehicle involving smoke coming out of his car. Mr Starr received information from the security team at the library who questioned Mr Starr about some oil left behind beside the applicant’s vehicle. Mr Starr asked the applicant to speak to him so that he could understand what had happened. The applicant explained the issues with his car and that he intended to clean up the oil the following morning. It appeared to Mr Starr to be a misunderstanding and that the applicant was simply experiencing some mechanical issues with his car. It is Mr Starr’s evidence that the applicant was not reprimanded or disciplined.
Ms Ileana Ferencz (Ms Ferencz), Acting Team Leader of Library Administration with the respondent, denies taking any duties away from the applicant and denies that she had any authority to do so. Ms Ferencz confirms that Mr Starr conducted a review of the Library Administration Team and as part of that process Mr Starr asked the three team members including the applicant to provide him with details and information about the tasks and duties that they were completing.
It is the Ms Ferencz’s evidence that some of the processes in the Library Administration Team were streamlined to improve efficiency and the overall workload may have lessened as a result.
It is the evidence of Sally Meakin (Ms Meakin) that in 2019 the applicant mentioned to her that he was very concerned about losing his position in administration, as the Unit Manager had asked him to take on the position of courier. In respect to the courier work the applicant had expressed to Ms Meakin concerns in respect to unreasonable and increasing workload, number of crates and extra weight.
It is the evidence of Ms Meakin that in 2021 she advised the applicant to consult a health professional about his mental health however he was reluctant to do so and was instead considering resigning from his position in order to escape the stress.
It is the applicant’s evidence that he was initially sent home on 7 July 2021 due to Covid-19 lockdown and a Public Health Order however, in his opinion he was unlawfully, told to return to work by Mr Starr on 20 July 2021 and forced to work in a state declared pandemic hotspot, travelling to and from local government areas of concern.
It is the applicant’s evidence that from 21 July 2021 to 15 September 2021 he was forced to work in a pandemic hotspot. That he was forced to work in a high-risk area near other staff which infringed the Public Health Orders of NSW Health.
It is Mr Starr’s evidence that in August 2021 he had about one hundred volunteers supporting the meals on wheels service and the applicant assisted in the delivery of meals to the elderly at their homes. It was considered an essential service to support the local aged community. It is Mr Starr’s evidence that the applicant did not raise any objection or issue with this.
It is Mr Starr’s evidence that he recalls the applicant telling him during a period of local government area lockdowns that he lived in a high-risk area. At the time Mr Starr was under the impression that the applicant lived in Brighton Le-Sands however the applicant advised that he lived elsewhere. Mr Starr denies that he ever instructed the applicant or any staff member to work on their own at the library in circumstances where no other team members were working at the library.
It is Mr Starr’s evidence that there were no restrictions around travelling to the respondent’s premises at the time and that the applicant was never instructed or required to do anything that went against any rules, Public Health Orders or laws in relation to travel or attending certain local government areas.
On 26 August 2021 the respondent sent a letter to the applicant titled “Public Health Order – Authorised Worker – Vaccination Requirement”. The letter referred to updated NSW public health orders as they relate to COVID-19 vaccinations for authorised workers who live in or are staying in local government areas of concern, and must leave their local government area for work, which were to come into effect on 30 August 2021.
The letter advised that under the orders effective 30 August 2021, if you live in or are temporarily staying in a local government area of concern, you must not leave that local government area for work unless you have had at least one dose of a COVID-19 vaccine or evidence of a medical exemption or evidence of COVID-19 testing as part of a COVID-19 rapid antigen testing program approved by the Chief Health Officer. Authorised workers who were unable to have a COVID-19 vaccine could request a COVID- 19 vaccination exemption for medical reasons.
The letter advised the applicant that the order applied to him as he was employed as an authorised worker, and according to the respondent’s records, resided in a local government area of concern. The letter went on to state “The public health order effectively imposes a condition that authorised workers be part vaccinated, or have an exemption, in order to leave their local government area for work.”[2]
[2] Reply p 80.
The letter stated that based on recent discussions between the applicant and his leader, the applicant had indicated that he was not willing to receive the COVID-19 vaccine at all, and had not produced evidence of a medical exemption.
The letter went on to state that whilst:
“Council acknowledges that receiving a COVID-19 vaccination is your personal choice, you will not be compliant with the public health order, that comes into effect Monday, 30 August 2021, as you are not able to lawfully leave your local government area for work from that effective date.
While we have work for you to perform from Monday, 30 August 2021, you are not ready, willing and able to lawfully comply with the public health order, which imposes a condition on you and council, for you to continue working. Complying with the above public health order is a condition of employment that you, by failing to comply, demonstrate you will not [be] able to lawfully perform the conditions to allow you to work from the date the public health order comes into effect.
You are not entitled to receive paid leave under the Local Government (COVID-19) Splinter (Interim) Award 2021. Therefore, Council advises that as of Monday, 30 August 2021, you will be placed on leave without pay, on the basis that you are not ready willing and able to comply with the public health order and thus lawfully work. You may access personal leave during this time. We recommend you re-consider your vaccination status.”[3]
[3] Reply pp 80-81.
It is the applicant’s evidence that he found the respondent’s letter of 26 August 2021 set unfair conditions of employment as it was very difficult to get a vaccinated within four days otherwise, he would be placed on leave without pay. It is also the applicant’s evidence that he felt he was treated unfairly as it was a NSW Health Condition not to travel and he was denied work provisions that colleagues who shared the same role as him were entitled to.
It is the applicant’s evidence that on Thursday 2 September 2021, the respondent’s general manager sent an email to all staff which stated that all office-based team members who can, must work from home. That whilst he was classified as an Administration Officer and his colleagues in the same role were allowed to work from home he was not, and this made the applicant feel unsupported, ignored and dismissed by the respondent as he was being treated differently to other staff members. It is the applicant’s evidence that he was the only administration officer from all nine libraries who did not work from home.[4]
[4] ARD p 2.
On 3 September 2021 the applicant completed the respondents COVID-19 job retention allowance request form.[5] The applicant classified himself as “vulnerable”, “services still closed” and “reduced workload”. In respect to whether he could perform his role in a different way the applicant recorded that he could. In respect to whether he could be redeployed the applicant recorded that he had filed a form for redeployment to work meals on wheels on 23 August 2021 but there had been no outcome.
[5] Reply pp 82-83.
On 3 September 2021 Mr Starr emailed the applicant acknowledging the request for job retention allowance and asked the applicant to explain why he was vulnerable as a team member.[6] On 6 September 2021 the applicant responded to Mr Starr by email claiming that he was vulnerable as a non-essential team member Administration Support Officer working in an office based team traveling from a non-area of concern to an area of concern to provide assistance. The applicant then referred to the dangers that the travel posed.[7] It is the applicant’s evidence that he identified travel as the reason due to fear of confronting Mr Starr.[8]
[6] Reply p 84.
[7] Reply p 85.
[8] ARD p 2.

It is the applicant’s evidence that on 16 September 2021 he experienced a mental health break down “in the building”. In applicant’s opinion he experienced the break down as he was physically and mentally struggling to function and work, and he felt as though he was about to collapse due to work pressures.[9] It is Mr Starr’s evidence that he is not aware of the applicant having a mental breakdown on 16 September 2021 and that the applicant never reported it to him.
[9] ARD p 2.
On 16 September 2021 the applicant attended on the GP, Dr Bishoy Marcus (Dr Marcus). The doctors clinical note for the attendance records that the applicant attended with symptoms consistent with benign palpitations. The doctor took a history that the applicant had for the last two years had incredible stress at work. Crazy quotas, aggressive boss, overworked, burnt out and harassment from his boss in relation to vaccination. The doctor noted that the applicant looked like he was having a panic attack in the doctor’s surgery. The doctor’s impression was of “[p]alpitations - ?anxiety/stress”. The doctor gave the applicant two months on stress leave.
The applicant does not appear to have returned to performing work duties after 16 September 2021.
It is the applicant’s evidence that on 17 September 2021 he reported to Mr Starr that he was on sick leave and that Mr Starr called him multiple times and pushed the applicant to speak to him.[10] Mr Starr confirms that he tried to call the applicant on more than one occasion on 17 September to check on him but denies pushing the applicant to speak to him or harassing him in any way. It is Mr Starr’s evidence that the applicant did not say to him that he didn’t want to speak to him and did not ask Mr Starr not to contact him.
[10] ARD p 2.
The applicant attended on Dr Marcus on 29 September 2021 at which time the doctor noted that the applicant was not acutely unwell and in need of emergency care. The doctor noted that the applicant was feeling better with his mental health with the time off work.
The applicant next attended on Dr Marcus on 10 November 2021 at which time he was highly anxious with the doctor recording that work had started to contact the applicant and that the applicant could “not get over bullying”. The applicant did not want to return to work.
On 10 November 2021 Dr Marcus issued a non-WorkCover medical certificate certifying the applicant unfit for work from 10 November 2021 to 10 January 2022 inclusive due to a “medical condition”.
On 15 November 2021 the applicant sent an email to the respondents Caroline Hammersley (Ms Hammersley) titled: “sick leave 10/11/21 – 10/01/22”. In the email the applicant advised that his doctor had extended his sick leave from 10 November 21 to 10 January 22. It is the evidence of Ms Hammersley that she replied to the applicant’s email asking him to nominate a time that suited him so that she could call him to discuss the respondent’s new COVID safe work policy as at the time, managers were instructed to reach out to team members to discuss the new policy.
On 16 November 2021 the respondents CovidSafe Work Policy came into effect. Clause 6.4 of the policy required all team members who attend the workplace or physically interact with the community or others in the workplace as part of their undertakings to be fully vaccinated against COVID-19 and to maintain their vaccination status, including boosters, on an ongoing basis. Evidence of maintaining vaccination status was required to be submitted to the respondent.
The policy also required team members who were required to be in the workplace, at any time, at the commencement of the policy to have at least one dose of a COVID-19 vaccine by 30 November 2021, with a second dose required by 7 January 2022. All other team members who were not undertaking duties in the workplace due to the working from home requirements of a Public Health Order were required to have received at least two vaccine doses by 1 February 2022. Team members who were on extended leave were required to be fully vaccinated against COVID-19 with the relevant evidence submitted to the respondent prior to their return to the workplace.
Clause 6.4.1 of the policy stated that team members who were unable to receive a COVID-19 vaccine due to medical reasons were required to obtain and produce a medical contraindication certificate from a medical practitioner in accordance with the Public Health Order requirements or as otherwise stated by relevant health authorities such as NSW Health.
Clause 6.4.2 of the policy advised that temporary arrangements would be assessed on a case-by-case basis by the General Manager. These temporary arrangements would be limited and would be considered against the following three criteria:
(a)    Health Status: whether a team member has a medical contraindication that results in them being unable to receive a COVID-19 vaccine.
(b)    Level of Interaction: the level of interaction that is required of the position the team member holds.
(c)    Council Values: the extent to which the temporary arrangement supports the organisation’s values.
The assessment for temporary arrangements would be conducted in consultation with the relevant leader as well as the Human Resources and Safety & Risk Units. The assessment would be based on the team member's normal role. Once the temporary arrangements had concluded, team members who chose not to be vaccinated would be advised of the consequences, which were likely to include their on-going employment with the respondent being at risk.
Clause 6.4.3 of the policy provided that team members and other workers were required to provide evidence of their COVID-19 vaccination status before the designated compliance dates.
On 16 November 2021 the respondents Michelle Hosni (Ms Hosni) sent an email to Ms Hammersley. Mr Starr was cc’d into the email. Ms Hosni suggested that the applicant should be asked the reason for his extended absence from work and depending on his response they could look at what the respondent’s next steps would be.
It is Ms Hammersley’s evidence that she called the applicant on 16 November 2021 and the applicant advised that he was weighing up his options and was still considering his position with respect to vaccinations. He advised that he had not yet made up his mind as to whether he was going to get vaccinated.
By email on 16 November 2021 the applicant responded to Ms Hammersley’s email of 15 November 2022. The applicant informed Ms Hammersley that he had been advised by staff of an email from the General Manager which he supposed indicated “the new covidsafe workplace policy”. The applicant stated “I believe we're heading towards 'show cause' phase next. You can call no probs”.
On 17 November 2021 Ms Hammersley emailed Ms Hosni. Mr Starr was cc’d into the email. The email contained the notes from Ms Hammersley’s conversation with the applicant on 16 November. Ms Hammersley noted that the applicant was aware of the respondents new COVID workplace policy as colleagues had contacted him and that he had not made a decision in respect to getting vaccinated and was looking at other vaccines that hadn’t been released in Australia. The applicant was aware of the policy deadline for staff to have their first vaccination by 30 November and was unsure if he would meet it. Ms Hammersley and the applicant had also discussed his extended sick leave, and the applicant had shared that he was suffering from a heart condition that he said was brought on by stress.
On 16 December 2021 Mr Starr emailed the applicant advising that he understood that he had leave approved until 10 January 2022 and that he was aware that the applicant had concerns about vaccination. Mr Starr advised that the respondents CovidSafe workplace policy required all team members who attend the workplace or physically interact with the community or others in the workplace to be fully vaccinated and to maintain their vaccination status, including booster vaccines, on an ongoing basis. Evidence of maintaining the vaccination status was required to be submitted to the respondent. Team members required to be in the workplace, at any time, at the commencement of the Policy were required to have received at least one dose of the COVID-19 vaccine by 30 November 2021, with the second dose required by 7 January 2022.
On 22 December 2021 the applicant emailed Ms Hammersley advising that he was aware that he needed to supply the respondent with his vaccination status before returning to work when his sick leave was scheduled to finish on 10 January. Given his health concerns the applicant asked to be allowed to access his annual leave for three months following the end of his sick leave in January, to allow him more time to recuperate prior to undertaking vaccination.
The applicant advised that he had looked at the options and his choice would be the Novavax product scheduled to be rolled out during the time he proposed for the additional leave. The applicant advised that if this was approved he would then inform the respondent of his vaccination status before the end of the proposed annual leave, to allow him to return to work.
It is the applicant’s evidence that at the time of sending the email on 22 December 2021 he was still suffering from physical and mental health issues and that was why he requested the additional leave.
On 30 December 2021 the respondent wrote a letter to the applicant titled “Re: COVIDSafe Workplace Policy”. The letter advised the applicant that he was being written to in response to his email dated 22 December 2021 and his current status in terms of the respondent’s COVIDSafe Workplace Policy.
The letter confirmed that it was a requirement of the policy that the applicant have received his second dose of an approved vaccine by Friday, 7 January 2022.
The letter noted that the applicant had advised in a recent email that he was not prepared to receive a COVID-19 vaccination at that stage and was waiting for a COVID-19 vaccine that had yet to be approved for use in Australia. The respondent advised that in the absence of an approved temporary arrangement, as per clause 6.4.2 of the respondent’s policy, should he maintain his stance, then as at 7 January 2022, he would be in breach of a reasonable and lawful direction from the respondent.
The respondent confirmed that a likely outcome of a failure to follow the direction, was that the applicant’s on-going employment with the respondent would be at risk. The respondent expressed that it appreciated that this may be a difficult time for the applicant and advised that it would have further discussions and check-ins with him before any final decisions were made.
The respondent advised “For the avoidance of doubt, this matter is serious and if your circumstances were to change such that you become compliant with the Policy (upon evidence provided), this process will be put on hold.”
The respondent also confirmed in the letter that it had received the applicant’s request for a temporary arrangement which they would review, and he would shortly be advised of the outcome.
On 7 January 2022 Mr Starr sent an email to the applicant titled “Covid 19 Workplace Safety Policy” in which he noted that he had sent the applicant a text that morning requesting that he contact him. Mr Starr advised the applicant that he understood that he had not advised the respondent that he had been fully vaccinated and therefore was not compliant with the CovidSafe Workplace Policy. This meant that he would not able to return to work on 11 January 2022 following his latest leave. As a result, the respondent would place the applicant on unpaid leave from 11 January 2022. The applicant was advised that he may seek to access to his personal leave should he have leave entitlements, and Mr Starr advised that he would be happy to discuss this with the applicant. The respondent gave the applicant to 31 January 2022 to become compliant with the policy.
Mr Starr advised the applicant that should he request a temporary work arrangement he would need to have made a written submission to the respondent by 14 January 2022, clearly stating the reasons for the temporary work arrangement.
It is the applicant’s evidence that at the time that he received Mr Starr’s email of 7 January 2022 he was on sick leave and was not in the right headspace to deal with all the information and correspondence directed towards him.
On 7 January 2022 the applicant sent an email to Ms Hammersley. The email also appears to have been sent to Mr Starr on the same day. The applicant requested that a temporary arrangement request be forwarded to the General Manager for their consideration whilst he waited for Novavax approval. The applicant confirmed that he was aware that he needed to supply the respondent with his vaccination status before returning to work once his sick leave was scheduled to finish on 10 January. The applicant asked to be allowed to access his annual leave for three months following the end of his sick leave in January as he needed to consider his health and the condition with which he had been diagnosed and to allow him more time to recuperate prior to being vaccinated.
The applicant advised that he had looked at the options and his choice would be the Novavax product scheduled to be rolled out during the time of the proposed additional leave. If this was approved, he would then inform the respondent of his vaccination status before the end of the period of proposed annual leave.
It is Ms Hammersley’s evidence that temporary arrangement refers to permission from the respondent, in certain circumstances such as a medical condition or exemption, for employees to return to the workplace for a short period of time without being vaccinated. This was assessed on a case by case basis by the respondent’s General Manager. She forwarded the applicant’s request to Human Resources to be actioned.
On 7 January 2022 the respondent wrote a letter to the applicant titled “RE: COVIDSafe Workplace Policy”.[11] The letter noted that it was a policy requirement for the applicant to have received his second dose of an approved COVID-19 vaccine by 7 January 2022. In consideration of the applicant being on an extended period of leave until 11 January 2022, the respondent amended this requirement and now required the applicant to be fully vaccinated by 1 February 2022. The respondent advised the applicant that as he would not be compliant with the policy on his expected return date, he would not be able to work and would be placed on unpaid leave as of 11 January 2022, or he may apply to take his own leave.
[11] ARD p 33
The letter noted that the applicant had advised in his email to Ms Hammersley on 22 December 2021, that he was not prepared to receive a COVID-19 vaccination at this stage and was waiting for a vaccine that had not yet been approved for use in Australia.
The letter advised that in the absence of an approved temporary arrangement, as per clause 6.4.2 of the policy, should the maintain this stance, then as at 1 February 2022, he would be in breach of a reasonable and lawful direction from the respondent. A likely outcome of a failure to follow this direction was that his on-going employment with the respondent would be at risk.
The respondent noted in the letter that the applicant had submitted a temporary arrangement request to Mr Starr on 7 January 2022 and advised that upon consideration, the respondent would provide the applicant with the outcome of that request.
It is the applicant’s evidence that on 11 January 2022, he contracted COVID-19 and provided a medical clearance form to human resources, which stated that from 18 January 2022 to 1 March 2022, no vaccination was required, and he could earn an income, however this was rejected and he was still pushed to get a vaccination.
On 17 January 2022 the applicant attended on Dr Marcus. The doctor noted that the applicant was doing well, that he had COVID but was better. The applicant wanted a six-month exemption but the doctor advised that he could not give that and that they were for one month only. The doctor provided support.
On 1 February 2022 the respondent sent a letter to the applicant titled “RE: Temporary Arrangement” which noted the applicant’s request for a Temporary Arrangement under the COVIDSafe Workplace Policy.[12] The respondent advised that it had reviewed the request and advised that upon assessing it against the policy, given the level of interaction the applicant’s role would have in the workplace and the operational requirement to service their customers and the community, the request was declined.
[12] ARD p 34.
The letter noted that the respondent had amended the requirement for the applicant to be fully vaccinated by 1 February 2022 and now required him to be fully vaccinated by 1 March 2022. However, as the applicant was not currently compliant with the policy, he would not be able to work and would therefore continue to be placed on unpaid leave, or he may apply to take his own leave.
The letter also noted that the applicant had advised in his email of 22 December 2021 that he was not prepared to receive a COVID-19 vaccination at that stage and was waiting for a COVID-19 vaccine that had yet to be approved for use in Australia. The letter again advised the applicant that should he maintain his stance, then as at 1 March 2022, he would be in breach of a reasonable and lawful direction from the respondent and that a likely outcome of a failure to follow this direction was that his on-going employment with the respondent would be at risk.
It is the applicant’s evidence that the respondent’s letter of 1 February 2022 exacerbated his mental health and he felt as though the respondent was purposely extending the process.
On 16 February 2022 Ms Hammersley sent an email to Elena Cakovska (Ms Cakovska) titled “Team Member Check In”. Ms Hammersley advised that she had checked in with the applicant who seemed well and friendly. Ms Hammersley had raised with the applicant that he needed to provide further documentation of his medical condition to support his contraindication. The applicant had asked for further information in writing from the respondent as he didn’t feel that he needed to provide additional information as the respondent are not medical experts. Ms Hammersley noted that the applicant had not made an appointment to get Novavax, and the applicant had stated that he was still considering it.
Ms Hammersley noted in the email that she had asked the applicant what type of leave he would like to put through from 19 January onwards and he had stated that he believed that he should be getting COVID Special Leave. Ms Hammersley advised the applicant that was not applicable to his situation and that he would need to pick a type of personal leave. The applicant told Ms Hammersley that he didn’t believe that he should have to take any leave, as in his opinion he is available to work, but the respondent would not let him. The applicant mentioned that he was aware that he was near the end of the road with this process and was running out of options. The applicant said that he was going to email human resources asking for some clarification as he wasn’t sure of a few things including the contraindication being declined and the Covid Special Leave.
It is the applicant’s evidence that the request made by Ms Hammersley on 16 February 2022 for further documentation regarding his medical condition made him feel as though no progress had been made and he did not understand why this request for further documentation had not been made earlier.
The respondent in a letter to the applicant dated 22 February 2022 titled “RE: CovidSafe Workplace Policy” confirmed that it was aware that the applicant had told Ms Hammersley, when asked about the type of leave he would like to take from 19 January 2022, that he had advised that he should receive COVID Special Paid Leave. The respondent acknowledged that Ms Hammersley had advised that COVID Special Paid Leave was not applicable and that the applicant would need to apply for personal leave.

The letter advised that as per the respondent’s leave provisions, team members could apply for special paid leave if they were unwell or could not work from home they could apply for up to one week (inclusive of weekends and public holidays) of special paid leave from the day of testing (pro rata where relevant) to cover the required isolation period. If additional leave was required, the team member needed to apply for personal leave. Requests for Special Paid Leave had to be supported with a medical certificate, PCR text notification or evidence of a registered positive rapid antigen test.
The letter noted that the applicant had applied for sick leave during the period he had COVID which could not be reversed to Special Paid Leave.
The respondent requested that the applicant apply for personal leave or advise his leader of the type of personal leave he would like to be paid from 19 January 2022 to 11 February 2022 as the respondent had paid ordinary hours and needed to account for the applicant’s absence.
The respondent advised that effective 12 February 2022, the respondent had placed him on unauthorised leave without pay. The applicant was advised that he could apply to take his own leave.
In respect to the applicant’s immunisation medical exemption form the letter noted that on 18 January 2022 the applicant provided to the respondent a copy of a letter that NSW Health had issued to him which provided that for six weeks from the end of his isolation period he did not need to be vaccinated under any NSW public health order. However, the letter noted that there was no need to delay vaccination once the applicant had fully recovered from COVID-19.
The letter acknowledged an email from the applicant dated 2 February 2022 with an Immunisation Medical Exemption Form stating that he was temporarily exempt from receiving a vaccination until 11 May 2022. No reason for that exemption had been provided to the respondent. The letter advised that based on the current stance being taken by NSW Health, the respondent was not in a position to accept the Immunisation Medical Exemption form based on a lack of information contained in that form. The applicant had not advised the respondent of any condition that contradicted the letter from NSW Health provided to them on 18 January 2022. Therefore, unless the applicant could provide new and additional information as to why he was temporarily exempt from receiving a vaccination, the respondent did not accept the Immunisation Medical Exemption Form and the respondent’s requirement for the applicant to be vaccinated as of 1 March 2022 remained.
The respondent also advised that it was aware that the applicant had advised Ms Hammersley that he was still considering whether to get the Novavax vaccination. The respondent was aware that appointments to receive the Novavax vaccination had been made available as of 21 February 2022. Therefore, if the applicant chose to be vaccinated with an approved vaccine, then by 25 February 2022 the respondent required the applicant to provide evidence of his first vaccination or that he had booked the first available appointment to be vaccinated. The applicant was requested to provide to the respondent evidence of his first dose and or appointment.
The letter advised the applicant that if he was not fully vaccinated, as of 1 March 2022, he would not be compliant with the COVIDSafe Workplace Policy and therefore would be placed on unpaid leave, or he may apply to take personal leave.
If the applicant was unable to provide suitable evidence of his intention to receive the Novavax vaccine by 25 February 2022, the respondent advised that it would review his employment. To return to the workplace, the applicant needed to provide the respondent with evidence of both doses of an approved vaccine. A likely outcome of a failure to follow this direction was that his on-going employment would be at risk.
It is the applicant’s evidence that the respondent’s letter of 22 February 2022 notified him that his working status was to be changed to unauthorised leave from 12 February 2022 until 31 December 2049 which meant that he could not enter sick leave or any leave at all and this made him feel as though the respondent was micro-managing every aspect of his working life.[13]
[13] ARD p 3.
It is also the applicant’s evidence that as he had a COVID-19 vaccination exemption from 11 January 2022 to 1 March 2022 he did not understand why he was being asked by the respondent to get vaccinated when he had a legitimate temporary exemption.
On 25 February 2022 the applicant sent human resources a lengthy document titled “Covidsafe Workplace Policy” in which he details multiple complaints in respect to the respondent’s policy and how it was being applied to him.
On 1 March 2022 the respondent wrote a letter to the applicant titled “RE: Response to Emails”.[14] The respondent advised that it had carefully considered the applicant’s recent emails to the Human Resources Unit dated 25 February 2022 and three separate emails dated 28 February 2022.
[14] ARD pp 39-40.
The letter noted that the advice of NSW Health remained that if a person has had COVID-19 and had fully recovered, there was no need to delay vaccination, unless the person had received an anti-SARS-COV-2 monoclonal antibody or convalescent plasma for the treatment of COVID-19. In this case vaccination should be delayed until at least 90 days following treatment completion. A medical clearance notice provided to a patient following the acute illness, may be used as a temporary exemption from vaccination for six weeks only. The respondent advised the applicant that it is in that context that they had questioned the length of the applicant’s exemption.
The respondent asked the applicant to respond to the two specific matters raised in their letter of 22 February 2022 by close of business on 3 March 2022 being:
(a) Did he have any new and additional information that supports the reason for the extended exemption beyond that recommended by NSW Health?
(b) Did he intend to get Novavax? If he did then provide the date of the appointment for the first dose and then the respondent could discuss that with him rather then review his ongoing employment.
The respondent advised that whilst they waited for the applicant’s response the applicant was still non-compliant with the COVIDSafe Workplace Policy and unable to return to the workplace. The respondent advised that the applicant had been placed on unauthorised leave from 12 February 2022 which would be changed to leave without pay however the applicant could apply to take personal leave.
On 8 March 2022 the respondent sent a letter to the applicant titled “Show Cause Letter” which said. The letter informed the applicant that the respondent proposed to terminate the applicant’s employment on the basis of failure to follow a reasonable and lawful direction in relation to the COVIDSafe Workplace Policy.
The respondent informed the applicant that it had found that he had breached clause 7.5 of the respondent’s Code of Conduct, specifically that:
“Members of staff of council while on duty must:
c) carry out reasonable and lawful directions given by any person having authority to give such directions”
The respondent advised the applicant that he had not complied with the respondent’s lawful and reasonable direction, being a safety directive. That he had an obligation to comply with safety directives under safety legislation and also under the Code of Conduct.
The letter noted that the applicant had advised Mr Starr that he had conducted his own research and was hesitant to receive any approved COVID-19 vaccination and that the applicant was unable to advise if he intend on receiving a COVID-19 vaccination in the future. Mr Starr had also asked if the applicant had any new or additional information that supported the extended exemption beyond that recommended by NSW Health, to which the applicant advised that there was no further information that he wished to provide. The respondent advised the applicant that as a result of his stance in relation to receiving a COVID-19 vaccination he was in breach of the COVIDSafe Workplace Policy and therefore had failed to follow a reasonable and lawful direction from the respondent and the respondent was therefore proposing to terminate his employment.
The respondent provided the applicant with an opportunity to provide a response as to why his employment should not be terminated.
It is the applicant’s evidence that when the show cause letter was issued on 8 March 2022, he was still on leave trying to recover from physical and mental health issues. The applicant felt as though the constant emails and contact from the respondent prolonged his recovery.
It is the evidence of Ms Hammersley that on 9 March 2022 she received an email from the applicant informing her that he would remain off work until 15 March 2022.
A medical clearance notice for the applicant dated 14 March 2022 advised that as he had tested positive to COVID-19 he had to self-isolate from 13 March 2022 to 19 March 2022. The notice strongly recommended vaccination including a booster dose. It is the applicant’s evidence that he provided the medical clearance notice to the respondent on 14 March 2022 which they accepted. It is the applicant’s evidence that he did not understand why he was not granted an exemption the first time he contracted COVID-19.
It is the applicant’s evidence that on 16 March 2022, he provided a letter titled notice of intention to lodge grievance letter for discrimination due to being unfairly discriminated against and victimised in relation to the respondent’s response to his unwillingness to be vaccinated. The applicant’s complaints in respect to his treatment by the respondent included failure to respond to his email requesting annual leave, no reply regarding clarification of Public Health Order and vaccination requirements, rejection of his temporary exemption form, no reply to clarify risk assessment, no reply to his statement that he had been subjected to a great deal of stress and coercion and no response in regard to his complaints of harassment, bullying and inappropriate behaviour by Mr Starr which contributed to his physical and mental health issues.
In the lengthy Notice of Intention to Lodge Grievance Letter for Discrimination dated 16 March 2022 the applicant stated that he wished to raise a number of issues in regard to current threats to his employment following the implementation of the respondent’s COVIDSafe Workplace Policy and the manner in which he was being treated by the respondent. The applicant wrote that he had suffered as a result of this, which had further impacted his already existing health issues.[15]
[15] ARD p 43.
The applicant stated that he had been subjected to a great deal of stress, discrimination, isolation, segregation, bullying, harassment, coercion, hostility and basically given an ultimatum. The applicant complained that regardless of his health concerns, which he alleges the respondent disregarded, he was required to get vaccinated within designated time frames, despite sick leave certificates and the federal exemption supporting his concerns.
The applicant denied that he had at any time breached either the respondent’s code of conduct or the COVIDSafe Workplace Policy.
The applicant complained in respect to the vaccination requirements that there had been a lack of consultation and that there had been threats. That his health concerns in respect to the vaccine were ignored. The respondent complained that he was labelled an essential worker and not allowed to work from home whilst other staff were allowed to work from home.
The applicant complained that his permanent role as an Administration Officer did not qualify him as an essential worker and that he was denied access to the Splinter Award Leave whilst other staff had access to it.
The applicant claimed that Mr Starr was “harassing” him prior to the introduction of the draft COVIDSafe Workplace Policy about his intentions in respect to getting vaccinated[16] and that previously Mr Starr had attempted to dismantle his position with the respondent.[17] The applicant’s position was to become vacant and advertised and he was to become a courier driver. The applicant records that he found this very stressful as he had to fight to retain his position.[18] The applicant complained that the high levels of stress that he experienced as a result of the combined situations seriously impacted on his health.[19]
[16] ARD p 48.
[17] ARD p 52.
[18] ARD p 52.
[19] ARD p 53.
On 17 March 2022 the respondent wrote a letter to the applicant titled “CovidSafe Workplace Policy”[20] in which the respondent acknowledged the applicant’s email of 12 March 2022 in which the applicant had advised that he had received error messages whilst attempting to apply for leave and complained that the respondent was blocking him from being able to apply for leave. The respondent advised that it was aware that Ms Cakovska had responded to the applicant via email on 17 March 2022 to support the applicant in applying for any personal leave. Ms Cakovska had advised the applicant that he was not blocked from applying for leave however there was an error in the system when the applicant was trying to apply for leave as it is in addition to leave already entered. Ms Cakovska had requested that the applicant advise what leave he would like to apply for.
[20] ARD pp 64-65.
The letter also noted that the applicant in his email dated 12 March 2022 had also stated that the respondent had not processed his sick leave or advised the reasons for the delay. The letter advised that as per an email from Ms Cakovska, the respondent had processed the applicant’s recent sick leave from 9 March 2022 to 15 March 2022. The applicant’s leader had submitted this to the payroll team on the applicant’s behalf prior to the applicant’s email on 12 March 2022.
The letter advised that as per the respondent’s letter dated 22 February 2022, on 18 January 2022 the applicant provided the respondent with a copy of a letter that NSW Health issued to him that provided that for six weeks from the end of his isolation period the applicant did not need to be vaccinated for COVID-19 under any NSW public health order. The respondent also noted that the letter from NSW Health also stated that there was no need to delay vaccination once he had fully recovered from COVID-19.
In the letter the respondent acknowledged the applicant’s email dated 2 February 2022 to Ms Robards and Ms Hosni with an immunisation medical exemption form stating that he was temporarily exempt from receiving a COVID-19 vaccination until 11 May 2022. The respondent noted that no reason for that exemption had been provided to the respondent and that based on the stance taken by NSW Health at the time, the respondent was not in a position to accept an immunisation medical exemption form based on a lack of information contained in that form. The applicant had not advised the respondent of any condition that contradicted the letter from NSW Health provided to the respondent on 18 January 2022.
Whilst in his email dated 8 March 2022, the applicant stated that he was ready, willing and able to work, the respondent’s position remained unchanged, unless the applicant could provide new and additional information as to why he was temporarily exempt from receiving a COVID-19 vaccination, the respondent did not accept the immunisation medical exemption form.
In its letter the respondent noted that the applicant in an email dated 8 March 2022 referred to being placed on unauthorised leave without pay. As per the respondent’s letter dated 1 March 2022, the applicant was advised that the unauthorized leave he was placed on, was reversed to leave without pay and the respondent had clarified that the applicant was not blocked from applying for leave however there was an error in the system when attempting to apply for leave.
The respondent also acknowledged that it had received the an email from the applicant dated 14 March 2022 where he had provided a medical certificate and medical clearance notice advising that he had tested positive for COVID-19 and that his isolation period was 13 March 2022 to 19 March 2022.
Whilst the respondent acknowledged that the applicant was willing to work, he was not ready and able to work as he did not comply with the COVIDSafe Workplace Policy nor had he provided any new and additional information as to why he was temporarily exempt. The respondent also acknowledged that the applicant was isolating as a result of testing positive for COVID-19.
It is the applicant’s evidence in respect to the respondent’s letter of 17 March 2022 that he did not understand why his immunisation medical exemption form was not accepted and felt as though he was being discriminated against and denied fair and reasonable judgement.
On 23 March 2022 the respondent wrote a letter to the applicant titled “Grievance Lodgement”. The letter acknowledged the grievance submitted by the applicant on 16 March 2022. It is the applicant’s evidence that the failed to respond in line with the NSW Local Government Agreement 2020 which required confirmation of receipt within two days and that the respondent also failed to have a meeting with him to discuss the grievance or dispute the remedy sought within two days. It is the applicant’s evidence that this made him feel isolated, unsupported and ignored, further impacting on his mental health.
On 14 April 2022 the respondent wrote a letter to the applicant titled “Re: Outstanding Wages”.[21] The letter referred to a meeting the applicant had with Mr Starr and Ms Cakovska on 7 April 2022 via MS Teams. The letter records that at the meeting, the applicant advised that he was of the understanding that by submitting the immunisation exemption form, as a valid temporary exemption, that this demonstrated that he was willing, ready and able to return to the workplace and could do so with the temporary exemption. The applicant advised that the temporary exemption was, in his opinion, in line with the respondent’s COVIDSafe Workplace Policy however as the respondent did not accept this, the applicant believed that he was owed outstanding wages.
[21] ARD p 69.
Mr Starr and Ms Cakovska had told the applicant that whilst he had submitted the immunisation exemption form, which stated that he was temporarily exempt from receiving a COVID-19 vaccination until May 2022, that the applicant had not provided any new or additional information to the respondent to properly assess the temporary exemption. It was on the basis that as he did not comply with the respondents COVIDSafe Workplace Policy and had not provided additional supporting information in relation to his temporary exemption, that the applicant was unable to return to the workplace.
In the letter the respondent acknowledged that the matter of outstanding wages had been clarified with the applicant and as such, there were no outstanding wages owing. Mr Starr had also advised and assured the applicant, that whilst he was on leave without pay, he could apply to take his own personal leave.
On 25 May 2022 the respondent wrote a letter to the applicant titled “Re: Outstanding Wages”.[22]
[22] ARD p 70.
The respondent wrote to the applicant regarding his status in terms of the COVIDSafe Workplace Policy. The letter advised the applicant that clause 6.4 of the policy required that he maintain his vaccination status including receiving boosters of an approved COVID-19 vaccine to remain up to date.
The letter advised that the respondent was following the recent advice from the Australian Technical Advisory Group on Immunisation (ATAGI) which recommended that individuals who have had prior infection to COVID-19 can be vaccinated with a COVID-19 vaccine as there is no requirement to delay vaccination. However, vaccination can be deferred for up to four months. This dose should be received by four months to remain up to date. According to the respondent’s records, the applicant provided evidence which confirmed that he tested positive to COVID-19 on 10 January 2022 and 13 March 2022.

The letter advised that in line with the stance being taken by NSW Health and ATAGI in relation to temporary exemptions from vaccination after having tested positive to COVID-19, the respondent accepted that there was no requirement to delay vaccination however for up to four months from date of infection the applicant was not required to receive his first COVID-19 dose.
The letter recorded that throughout various discussions with the respondent, the applicant had advised that he had either been willing to receive an approved COVID-19 vaccination, unwilling or had been hesitant. The respondent requested that the applicant advise of his intent to receive a COVID-19 vaccination, and should he receive a COVID-19 vaccination, the applicant was required to provide written correspondence of the scheduled appointment that had been booked by 30 May 2022. If he intended to receive a COVID-19 vaccination, the respondent expected that the applicant would receive his first dose by 13 July 2022.
The respondent also confirmed that the applicant was able to return to the workplace, pending a fully signed COVIDSafe Personal Support Plan Checklist which the applicant’s Manager would contact him to further discuss.
The letter advised the applicant that should he choose not to respond to the letter, the respondent would make a decision based on the information which it had received and the applicant would continue to be placed on leave without pay or may take personal leave.
The respondent reiterated that a likely outcome of a failure to follow the direction, was that the applicant’s on-going employment with the respondent would be at risk. For the avoidance of doubt, the respondent advised that this matter is serious and if the applicant’s circumstances were to change such that he became compliant with the policy, this process would be put on hold.
On 30 May 2022 the applicant sent an email to Ms Hammersley titled “Work status 30/5/2022” advising that he had booked to receive a Pfizer vaccination and stating that he was willing, ready and able to come to work but due to the respondent’s Covidsafe policy he was not authorised to return to work. Ms Hammersley replied by email to the applicant on the same day thanking him for providing an update and advising that she had forwarded the information to Human Resources (HR) and Mr Starr. On 2 June 2022 Ms Hammersley sent a further email to the applicant requesting a copy of his evidence of vaccination.
It is the evidence of Ms Cakovska that the applicant submitted another medical certificate that put him off work until 1 July 2022.
On 7 June 2022 the applicant emailed Ms Hammersley advising that he had booked to be vaccinated on 30 May 2022 however the doctor advised that he could not administer the vaccination until the period of the applicant’s medical certificate had run out. Ms Hammersley responded by email to the applicant on the same day asking if the applicant had made a booking to receive his first vaccination after 1 July 2022, when his medical certificate was due to expire.
On 21 June 2022 the applicant completed a consent form for COVID-19 vaccination in which the applicant agreed to receive a course of the COVID-19 vaccine.
On 25 July 2022 the respondent sent a show cause letter to the applicant. The letter informed the applicant of the respondent’s position in relation to his employment and whether it is reasonable to continue his employment. The respondent afforded the applicant a final opportunity to provide evidence of vaccination as at 13 July 2022 and/or to show cause in writing why, in the circumstances the respondent should continue his employment.
The letters states that the respondent had found that the applicant had breached clause 7.5(c) of the respondent’s Code of Conduct specifically that members of staff while on duty must carry out reasonable and lawful directions given by any person having authority to give such directions.
The letter advised the applicant that he had not complied with the respondent’s lawful and reasonable direction, being a safety directive. That the applicant had an obligation to comply with safety directives under safety legislation and also under the Code of Conduct.
The letter advised the applicant that his conduct not only breached the Code of Conduct, but he had also breached:
(a) duties to comply with reasonable and lawful directions of the respondent as his employer, and
(b) statutory duties as a worker to cooperate and comply with reasonable policy and procedures of the respondent to enable it to comply with its duties under the Work Health and Safety Act 2011 (NSW).
In relation to recent correspondence, following the show cause letter dated 8 March 2022, the respondent advised that it was aware that the applicant was provided with a letter dated 25 May 2022 and went on to repeat a large part of that letter.
The letter noted that on 30 May 2022 the applicant had provided evidence of a COVID-19 vaccination appointment to Ms Hammersley, however he had failed to provide evidence that he had received his first dose of an approved COVID-19 vaccine. Subsequently, on 28 June 2022 the applicant had provided evidence of a COVID-19 vaccination appointment on 23 June 2022 but had again failed to provide evidence that he had received his first dose of an approved COVID-19 vaccine.
The letter advised that as a result of his stance in relation to receiving a COVID-19 vaccination the applicant was in breach of the COVIDSafe Workplace Policy and therefore had failed to follow a reasonable and lawful direction the reasonable work health and safety policies and procedures of the respondent.
The respondent gave the applicant a final opportunity to provide medical evidence of his COVID-19 vaccination as at 13 July 2022 and/or a written response as to why the respondent should reasonably continue his employment in all the circumstances or accept the applicant’s repudiation as recission and termination of employment at the applicant’s own initiative and personal decision not to comply.
It is the applicant’s evidence that he found the respondent’s show cause letter of 25 July 2022 to be unreasonable as the respondent completely disregarded and ignored his grievance prior to threatening to dismiss him.
On 1 August 2022 the applicant sent a lengthy email to the respondents Kelly Figueira responding to the respondent’s show cause letter of 25 July 2022.
It is the applicant’s evidence that on 1 August 2022, instead of being dismissed with the first show cause letter, the respondent issued a second show cause letter which caused his anxiety to increase due to the anticipation and threat of losing his job being extended.
On 11 August 2022 the applicant attended for the first time on the GP, Dr Lim. Dr Lim reported on 11 August 2022 that the applicant had attended on the doctor following psychological injury sustained on 20 September 2021. The applicant had last worked on 20 September 2021. The doctor diagnosed an adjustment disorder with anxiety as well as hypertension.
The doctor recorded a history that the applicant had been victimised and harassed at work when the respondent was considering reclassifying his position to courier driver. That in August 2021 the respondent begun pressuring him to receive COVID-19 vaccination. He was the only staff member not permitted to work from home and his position was changed to essential worker to ensure that he could work in the office. His employment was continually threatened, and he was harassed after taking sick leave and was asked by management to prove he was sick despite medical certificates from his doctor.
The doctor is of the that the opinion that the applicant had sustained a workplace psychological injury with work being the main contributing factor.
Dr Lim was of the opinion that the applicant was unfit for work and that he had been continuously incapacitated since ceasing work on 20 September 2021.
On 11 August 2022 Dr Lim referred the applicant for psychological therapy to Insightfulmind.
The applicant’s psychologist, Carl Nielsen, of Insightfulmind reported to the applicant’s solicitors on 17 August 2022 that the applicant reported that issues arose in his place of work in 2019 when his manager, Mr Starr, was going to give the applicant’s position to someone else and move the applicant to the role of courier. The applicant reported that he required HR to intervene so that he could retain his position. The applicant also reported that he was targeted during Covid-19 when all of the employees at his workplace were able to work from home except for him. The applicant reported being harassed after taking sick leave by being asked to prove his sickness despite receiving a certificate from his GP. The applicant’s mental state deteriorated to such an extent that he was unable to work and his last day of work was 20th September 2021 and he had not returned to work since then.
Mr Nielsen diagnosed an adjustment disorder with depressed and anxious mood with work being the main contributing factor to the adjustment disorder. Mr Nielsen was of the opinion that the applicant was unfit for work duties.
On 18 August 2022 the respondent sent a letter to the applicant titled “Invitation to attend outcome meeting”. The applicant was requested to attend a meeting via TEAMS on 23 August 2022 to discuss the outcome of the respondent’s show cause letter dated 25 July 2022. It is the applicant’s evidence that he did not respond to the respondent’s letter due to his depression and anxiety and that for the same reason he did not answer a telephone call from Mr Starr.
It is the applicant’s evidence that on 19 August 2022, he submitted a certificate of capacity claiming total unfitness for work until 7 September 2022 as his condition was worsening. The applicant attributes the decline in his condition and mental wellbeing to harassment and bullying by the respondent.
It is the evidence of Ms Cakovska that the applicant on 22 August 2022 submitted a workers compensation claim and that he requested that the meeting scheduled for 23 August 2022 be rescheduled. The meeting did not go ahead.
On 23 August 2022 the respondent’s Kelly Figueira sent an email to the applicant titled “Outcome Meeting”. The email advised that the outcome meeting had been cancelled. The respondent gave the applicant two options by which to receive the outcome. It is the applicant’s evidence that he did not respond to the email from Kelly Figueira due to his depression and anxiety.
Dr Lim reported on the applicant on 25 August 2022 certifying the applicant unfit for work from 25 August 2022 to 21 September 2022 due to his psychological injury.
On 21 February 2023 Dr Ben Dickson issued a certificate of capacity certifying the applicant with no current capacity for any work between 21 February 2023 and 16 May 2023 with a diagnosis of adjustment disorder with anxiety and hypertension. The doctor recorded that the applicant had sustained injury on 20 September 2021. The doctor recorded that the applicant had a psychological injury from the workplace, he was bullied and targeted at work. He worked in a stressful environment where he was the only one required to work in the office during COVID-19 and not allowed to work from home. On 23 November 2022 Dr Dickson issued a further certificate of capacity certifying the applicant with no current capacity for any work between 23 November 2022 and 21 December 2022 with a diagnosis of adjustment disorder with anxiety and hypertension.
It is the evidence of Mr Starr in respect to the communications with the applicant whilst the applicant was absent from work that he denies that those communications were harassing, inappropriate or unprofessional in nature. It is Mr Starr’s evidence that the respondent made a conscious decision to ensure that it maintained regular contact with those employees who were off work and unvaccinated to ensure the respondent was checking on their welfare, offering them any support or counselling that they may wish to take up and to clarify any questions that they may have had with respect to the respondents COVIDSafe workplace policy. It was also important for managers and the human resources team to maintain contact with those employees so that the respondent could understand their position with respect to their vaccination status so as to plan for their return to the workplace or to ensure they understood the serious potential ramifications of not complying with the policy. Mr Starr states that the applicant never indicated that he had an issue with Mr Starr contacting him.

Dr Abdal Khan

Dr Abdal Khan, psychiatrist, provided to the applicant a medico-legal report dated 19 January 2023. The applicant reported that he first experienced difficulties during his employment in mid-2021.
The applicant reported that during the COVID-19 lockdown in NSW in mid-2021, the general manager sent all non-essential workers home and advised them to work from home. The applicant had also been sent home but his manager, Mr Starr, had called him and told him that he was an essential worker and that he needed to continue to work in the workplace. The applicant said that he was confused by his manager’s request as he did not meet the definition of an essential worker as detailed in the email from the general manager.
The applicant reported that he was expected to travel from his home to his workplace, which was an area that he was not allowed to enter. He noticed how his mental state started to first deteriorate around this time. The applicant reflected on how he started to experience debilitating symptoms of anxiety, panic and hypervigilance, particularly when he saw police cars. On numerous occasions, he felt like he was having a heart attack. The applicant said that he was the only employee from the respondents nine libraries that was expected to work in the workplace. He was concerned that he was placing his own health as well as the health of his family, including his elderly mother, at risk.
The applicant reported that on or about 21 August 2021, he received a letter from the respondent that he described as fraudulent. He reported how the letter commented on how he was “unwilling” to obtain the COVID vaccines. The applicant said that the respondent gave him four days to obtain the COVID vaccines. He was not confident about obtaining the Astra Zeneca vaccines due to side effects and the waitlist for the Pfizer vaccines was approximately four weeks. The applicant reported how the respondent threatened to remove various provisions and continued to pressure him to obtain the vaccines.
The applicant reported how he contracted COVID on two occasions around late 2021 and early 2022. He reflected on how his manager tried to interrogate him about sick leave that he had taken and tried to stop a meeting he had arranged with human resources. The applicant said that he was placed on “unauthorised leave until the year 2049” and only when he raised his concerns about this matter was the issue addressed. He continued to receive inconsistent messages from his employer about whether he was or was not able to work around the times he had contracted COVID. The applicant mentioned how Mr Starr had tried to terminate his employment earlier and have another take his position and the respondent had tried to change his position to courier driver.
The doctor concluded that as a result of the aforementioned work-related stressors, the applicant experienced gradual deterioration in his mental state. Dr Khan diagnosed a panic disorder as well as a major depressive disorder with employment being the substantial contributing factor.
Dr Khan was not of the opinion that the applicant’s psychiatric/psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer or dismissal. In the doctor’s opinion the applicant’s mental state first deteriorated before any such action was taken or proposed to be taken by or on behalf of the respondent, his manager made him work in the workplace in mid-2021 during the COVID-19 lockdown when he was not an essential worker, all other non-essential workers were expected to work from home. This unlawful travel caused his mental state to deteriorate and led him to develop the psychiatric condition of panic disorder. The applicant later endured other stressors whereby he was pressured to obtain COVID vaccines without a requirement to do so, threats were made to remove his work provisions and threats were made about the security of his employment. These experiences caused his mental state to deteriorate further and led him to develop the psychiatric condition of major depressive disorder. It is the doctor’s opinion that these “unreasonable” actions of the respondent were the whole or predominant cause of the psychological injury.
Dr Khan assessed the applicant with no current capacity for work.

Dr Thurairetnam Sivaruban

Dr Thurairetnam Sivaruban, psychiatrist, has provided a medico-legal report to the respondent dated 31 October 2022. Dr Sivaruban records that the applicant reported that his employment with the respondent was terminated on 6 August 2022.
The applicant reported that his psychological symptoms probably started in 2019 due to the difficulties he faced with his manager. He reported that his manager tried to remove him from his position and replace him with a girl known to him. He reported that his job characteristics changed, and he unwillingly started assisting as a courier, which was not his primary role. He reported that his manager kept putting him under pressure in meetings and repeatedly told him he must become a full-time courier. He reported the manager was very aggressive during the meetings. He reported that work stress led to the development of anxiety. As a result, he reported he often spent his lunch breaks in his car relaxing and applying relaxation techniques.
The applicant reported that in 2020 he had a problem with his car and removed oil from his car at his workplace. He reported that he was told that he had to pay a $2,000 fine or dismissal. He felt victimised, making him very scared and fearful. He reported it worsened his anxiety and mood symptoms and his palpitations and chest tightness.
He reported that he was falsely classified as an essential worker. The general manager had informed the staff members that everyone had to work from home and he was the only one who was not allowed to work from home and had to attend the workplace. He was very worried and anxious about being arrested for breaking the law by travelling to work outside his local government area. He took back roads to avoid being caught by the police. He reported that he was very stressed going to the workplace. He reported it caused more anxiety and depression. His blood pressure went up and he could not concentrate. He reported worsening anxiety and mood symptoms related to a COVID vaccine mandate. He was worried about the vaccine's side effects because he had a bad reaction to a vaccine when he was young, and two of his friends had suffered a bad reaction to it, which heightened his anxiety. The applicant reported that he was not against the vaccine but wanted to wait until the research was completed in 2023. He reported that the vaccine related stress had been the most prominent among all the work-related stressors. He reported that his psychological symptoms worsened in September 2021.
The applicant reported that his psychological symptoms continued to worsen due to his communication with his employer, mainly related to the vaccine, and he felt he had been harassed, intimidated and threatened by his manager with termination of his employment. He reported that his symptoms worsened every time he got an email or a phone call. The applicant reported that he tried to delay vaccination as much as possible and got temporary exemptions due to being positive for COVID.

Mr Starr does recall the applicant informing him during a period of local government area lockdowns that he lived in a high-risk local government area. Whilst Mr Starr denies that the applicant was ever instructed or required to do anything that went against any rules, Public Health Orders or laws in relation to travel or attending certain local government areas the applicant does appear to have travelled to work following the Public Health Order which came into effect on 30 August 2021 which the respondent advised the applicant of under cover of their letter dated 26 August 2021. In that letter the respondent incorrectly advised the applicant that the Public Health Order effectively imposed a condition that workers be part vaccinated (which the applicant was not) or have an exemption (which there is no evidence that he had) in order to leave their local government area for work.
The applicant was provided with non-WorkCover medical certificates by Dr Marcus on 16 September 2021 and 10 November 2021. The initial certificate put the applicant off work for two months whilst the second certificate was for the period 10 November 2021 to 10 January 2022. On 16 November 2021 the respondents Ms Hosni suggested to Ms Hammersley that the applicant should be asked about his extended sick leave. As suggested on 16 November 2021 Ms Hammersley discussed with the applicant his extended sick leave.
The evidence supports that the applicant was placed under considerable pressure to get vaccinated against COVID-19. The respondent repeatedly telephoned, emailed and wrote to the applicant advising of their requirement for him to get vaccinated, for his vaccination status to be maintained and that the if he failed to comply with that requirement that his employment with the respondent was at risk. His employment was in fact ultimately terminated in August 2022. To reinforce the gravity of the applicant’s situation the respondent advised the applicant “For the avoidance of doubt, this matter is serious…”
The applicant complains that at least initially the time frame in which he was provided to get vaccinated was unreasonable. The respondent’s letter to the applicant of 26 August 2021 advised the applicant that as he was not vaccinated he would not be compliant with the Public Health Order that was to come into effect on 30 August 2021 and that complying with the Public Health Order was a condition of his employment and that he was going to be placed on leave without pay as of 30 August on the basis that he was not ready willing and able to comply with the Public Health Order. The applicant was therefore effectively given four days to get vaccinated.
The evidence supports and I therefore find that many of the events that the applicant complains of did actually occur even if there maybe disputes in respect to the circumstances surrounding those events. I also find that the applicant perceived those events as creating an offensive or hostile working environment.
The applicant relies on a deemed date of injury of 20 September 2021. It appears that this date is relied on, on the basis that on or about this date the applicant ceased performing work duties with the respondent. On the medical evidence the applicant first attended on a doctor complaining of psychological issues on 16 September 2021 when he attended on Dr Marcus at which time the applicant appears to have suffered a panic attack in the doctor’s surgery. At that point Dr Marcus was of the opinion that the applicant’s psychological condition was such that he required two months off on “stress leave”. On 10 November 2021 Dr Marcus issues a further non WorkCover medical certificate certifying the worker off work from 10 November 2021 to 10 January 2022 due to a “medical condition”. The doctors clinical note from 10 November 2021 indicates that the medical condition from which the applicant was suffering was psychological in nature with the doctor noting that the applicant was highly anxious. Whilst Dr Marcus does not appear to have made a formal diagnosis in respect to the applicant’s psychological condition I am satisfied that at the time of his attendances on Dr Marcus on 16 September 2021 and 10 November 2021 when the medical certificates were issued that the applicant was suffering from a psychological injury. It is not unexpected that Dr Marcus in his capacity as a GP rather than a psychologist or psychiatrist did not make a formal diagnosis. The applicant has subsequently been formally diagnosed by Dr Khan, Mr Nielsen and Dr Sivaruban.
I find that the applicant sustained psychological injury on the deemed date of 20 September 2021.

Section 11A(1) of the 1987 Act – wholly or predominantly caused by reasonable action taken of proposed to be taken by the respondent in respect to dismissal of workers, transfer and/or the provision of employment benefits

Pursuant to s 11A(1) of the 1987 Act the respondent disputes the applicant’s claim on the basis that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to dismissal of workers, transfer and/or the provision of employment benefits.
In its submissions the respondent solely relies on action taken by the employer in respect to dismissal.
The respondent submits that the applicant did not give notice of injury until August 2022 when he presented a certificate of capacity from Dr Lim. The applicant had been on sick or other personal leave from at least 20 September 2021.
It is submitted that the respondent’s actions were all actions taken to implement and enforce its COVIDSafe Workplace Policy . That the respondent’s actions brought to the attention of the applicant what the COVIDSafe Workplace Policy involved, how it could be complied with and the consequences of non-compliance with the COVIDSafe Workplace Policy. That these consequences were spelled out to the applicant i.e. that firstly, he could not attend work and secondly, if non-compliance continued, then termination of his employment.
The respondent submits that as such, they were actions taken or proposed to be taken with respect to dismissal.
The respondent submits that the applicant’s notification of a psychological injury occurred in the context of being informed that his employment was about to be terminated due to his failure to comply with the COVIDSafe Workplace Policy and the respondent’s code of conduct. The respondent observes that the applicant submitted a certificate of capacity the day after being issued with a letter on 18 August 2022 inviting him to a meeting to discuss the outcome of the show cause letter issued on 25 July 2022. His incapacity for work only commenced in August 2022, immediately after the meeting organised by his employer to notify him that his employment was to be terminated. This in the respondent’s submission very strong evidence to the effect that the termination of employment played a very important role in the causation of the injury and incapacity for employment.
The respondent carries the onus of proof in respect to establishing the defence under s 11A.
I do not accept the applicant’s submissions for the following reasons.
For s 11A(1) to apply the psychological injury must have been “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 relies on the opinion of Dr Sivaruban who is of the opinion that the psychological injury has been wholly or predominantly caused by action taken or proposed to be taken by the respondent with regard to dismissal. I do not accept the opinion of Dr Sivaruban. At point 9 of his report Dr Sivaruban records the question that was posed for his consideration before giving his opinion. In respect to dismissal the report records that the following had been put to the doctor:
“The timeline of events suggests the worker submitted a certificate of capacity the day after being issued with a letter inviting him to a meeting to discuss the outcome of the show cause letter which was issued on 25 July 2022. We consider this falls within the category of dismissal.”
Whilst it is correct that Dr Lim on 25 August 2022 certified the applicant as unfit for work from 25 August 2022 to 21 September 2022, the applicant had earlier attended on Dr Lim on 11 August 2022 at which time the doctor diagnosed an adjustment disorder with anxiety with work being the main contributing factor. On 11 August Dr Lim was of the opinion that the applicant was unfit for work and that he had been continuously incapacitated since ceasing duties in September 2021. Furthermore, Dr Lim referred the applicant to the psychologist, Mr Nielsen, who reported on the applicant on 17 August 2022 with an diagnosis of adjustment disorder with depressed mood and also was of the opinion that the applicant was unfit for work duties. The applicant had therefore been diagnosed by Dr Lim and Mr Nielsen with a psychological injury some two weeks prior to the certificate of capacity dated 25 August 2022 and the issuing of the letter by the respondent inviting him to the meeting outcome meeting.
Dr Sivaruban interviewed the applicant and took a detailed history including that his psychological symptoms probably started in 2019 due to difficulties that he faced with his manager including his manager attempting to remove him from his position, that he unwillingly started to assist as a courier driver, that he was placed under pressure to become a full time courier driver, that his manager was very aggressive during meetings, that at that time he often spent his lunch breaks in his car relaxing and applying relaxation techniques, that in 2020 he felt victimised, scared and fearful in respect to an incident involving him removing oil from his car at work which worsened his anxiety and mood symptoms with palpitations and chest tightness, that he was falsely classified as an essential work when his colleagues were able to work from home, that he had been very worried and anxious about being arrested for breaking the law by travelling to work outside his local government area and that he was very stressed going to the workplace which caused more anxiety and depression, that his anxiety and mood symptoms worsened in relation to the COVID vaccine mandate with him being worried about the vaccine's side effects and that vaccine related stress had been more prominent among all the work-related stressors. The doctor noted that the applicant had reported that his psychological symptoms had worsened in September 2021. That his psychological symptoms had continued to worsen due to his communication with his employer, mainly related to the vaccine, and he felt he had been harassed, intimidated and threatened by his manager with termination of his employment. That the applicant had reported that his symptoms worsened every time he got an email or a phone call.
Dr Sivaruban does not explain, given the history taken by the doctor of multiple workplace stressors with symptoms reportedly commencing in 2019 and worsening in September 2021, how on that history he had come to the opinion that the psychological injury has been wholly or predominantly caused by action taken or proposed to be taken by the respondent with regard to dismissal.
The opinion of Dr Sivaruban is also not supported by the fact that the COVIDSafe Workplace Policy did not come into effect until 16 November 2021. Whilst the applicant on 16 November 2021 may have believed that he was heading towards a show cause phase, as he expressed in his email to Ms Hammersley, it was not until the respondent’s letter of 30 December 2021 that he was advised that his ongoing employment with the respondent was at risk.
It is the applicant’s evidence that prior to the COVIDSafe Workplace Policy coming into effect he experienced a mental breakdown on 16 September 2021 which appears to have happened at the workplace. It is the evidence of Mr Starr that he was not aware of the applicant having a mental breakdown on 16 September 2021 and that it was not reported to him. However, the applicant’s evidence is supported by his attendance on Dr Marcus on 16 September 2021.
The clinical record for the attendance on Dr Marcus on 16 September 2021 records that the applicant reported that for the last two years he had been under incredible stress at work with crazy quotas, aggressive boss, overworked, burnt out and harassed by boss in respect to vaccination. The doctor records that the applicant looked as if he was having a panic attack in the surgery. The doctor certified the applicant as unfit to work for two months on “stress leave”. On 10 November 2021 Dr Marcus certified the applicant as unfit to work from 10 November 2021 to 10 January 2022 due to a “medical condition”, however the clinical record of the attendance indicates that the medical condition was psychological in nature with the doctor recording that the applicant was highly anxious, that the respondent had started to contact the applicant and that the applicant could “not get over bullying”. The applicant did not return to his work duties after 16 September 2021.
On the evidence the applicant’s psychological complaints commenced before any action was taken by the respondent to terminate the applicant’s employment.
I prefer the opinion of Dr Khan. Dr Khan took a detailed history and also considered the reports of Dr Lim dated 11 August 2022 and Mr Nielsen dated 17 August 2022. Dr Khan is not of the opinion that the applicant’s psychological injury is wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal. Dr Khan explains that his opinion is based on the applicant’s mental state having first deteriorated before any such action was taken or proposed to be taken, which is supported by the evidence. That being required to attend work during the pandemic when his colleagues were expected to work from home led him to develop a psychological injury. That he later endured other stressors whereby he was pressured to obtain COVID vaccines without a requirement to do so, threats were made to remove his work provisions and threats were made about the security of his employment. These experiences caused his mental state to deteriorate further and led him to develop the psychiatric condition of major depressive disorder.
The next issue to be considered is whether the actions taken or proposed to be taken by the respondent were “reasonable”.
I find that the actions taken or proposed to be taken by the respondent in respect to dismissal, transfer and / or the provision of employment benefits were not reasonable for the following reasons.
The applicant does not allege and it is not submitted on behalf of the applicant that the respondent’s COVID vaccine mandate was, itself, unreasonable.
The respondent in its submissions relied on a series of communication between the applicant and the respondent which commenced on 26 August 2021.
On 26 August 2021 the respondent wrote a letter to the applicant titled “Public Health Order – Authorised Worker – Vaccination Requirement” which advised the applicant of a Public Health Order which was to come into effect on 30 August 2021. The letter contained an excerpt from the Public Health Order which advised that anybody living in or temporarily staying in a local government area of concern must not leave their local government area for work unless they had:
(a)    at least one dose of a COVID-19 vaccine or
(b)    evidence of a medical exemption or
(c)    evidence of COVID-19 testing as part of a COVID-19 rapid antigen testing program approved by the Chief Health Officer.
In the letter the respondent advised the applicant that he was an authorised worker and that as he resided in a local government area of concern the Public Health Order applied to him. The respondent ignored option (c) above and incorrectly informed the applicant that “The public health order effectively imposes a condition that authorised workers be part vaccinated, or have an exemption, in order to leave their local government area for work.”
It appears that even prior to the respondent’s letter of 26 August 2021 the respondent had been making inquiries of the applicant in respect to his vaccination plans as the letter noted, on the basis of recent discussions, that the applicant had indicated that he was not willing to get vaccinated at all.
The respondent ignoring option (c) above told the applicant that he would not be compliant with the Public Health Order when it came into effect on 30 August and would not be able to lawfully leave his local government area to work.
The respondent advised the applicant that he would be placed on leave without pay, on the basis that he was not ready willing and able to comply with the Public Health Order and thus lawfully work. The applicant was advised that he could, if he wished, access his leave entitlements. The respondent recommended that the applicant reconsider his vaccination status.
The letter did not suggest to the applicant that he obtain the appropriate testing in accordance with (c) above so that he could continue to perform his duties, it only allowed the applicant four days to get vaccinated if he so wished prior to being placed on unpaid leave, it suggested no other work arrangements even though part of the applicant’s duties were administrative in nature and could presumably have been performed from home as his colleagues were doing.
It is not until 16 November 2021 that the COVIDSafe Workplace Policy came into effect. The policy required all team members who attended the workplace or physically interacted with the community or others in the workplace as part of their undertakings to be fully vaccinated with evidence of their vaccination status to be provided to the respondent. Team members who were required to be in the workplace, at any time, at the commencement of the policy were to have at least one dose of a COVID-19 vaccine by 30 November 2021 with a second dose required by 7 January 2022. Team members who were working from home were required to have two doses of a vaccine by 1 February 2022. Team members who were on extended leave were required to be fully vaccinated with evidence of their vaccination status provided to the respondent prior to their return to the workplace.
Immediately following the introduction of the COVIDSafe Workplace Policy the respondent’s Ms Hammersley telephoned the applicant on 16 November. During that conversation the applicant’s vaccination status was discussed with the applicant having little time to consider his position following the introduction of the COVIDSafe Workplace Policy. Even at that early stage in the introduction of the COVIDSafe Workplace Policy the applicant appears to have had cause to be concerned about the security of his employment emailing Ms Hammersley stating “I believe we’re heading towards ‘show cause’ phase next.”
On 16 December 2021 Mr Starr emailed the applicant advising that he understood that the applicant had leave approved until 10 January 2022 restating the respondent’s policy that all team members who attended the workplace or physically interact with the community or others in the workplace as part of their undertakings were required to be fully vaccinated. Mr Starr then referred to the requirement for team members who were required to be in the workplace at any time at the commencement of the policy to have received at least one dose of vaccine by 30 November 2021 and a second does by 7 January 2022. Mr Starr did not refer to the policy requirements for team members who were on extended leave, which applied to the applicant as he had been off work since September and had therefore been on leave at the time of the COVIDSafe Workplace Policy coming into effect, which was simply that they be fully vaccinated prior to their return to the workplace.

On 22 December 2021 the applicant emailed Ms Hammersley confirming that he was aware that he needed to supply the respondent with details of his vaccination status before returning to work when his sick leave was scheduled to end on 10 January 2022. Given his health concerns the applicant requested that he be allowed to access his annual leave for three months following 10 January 2022 to allow him more time to recuperate prior to undertaking vaccination and that he had looked at the vaccine options and his choice was the Novavax product which was scheduled to be rolled out during the period of the proposed annual leave.
On 30 December the respondent wrote a letter to the applicant in response to the applicant’s email of 22 December 2021 inquiring about his vaccination status and advising that the policy required him to be fully vaccinated by 7 January 2022. The letter advised that should the applicant continue his stance of not being prepared to get vaccinated he would then, as of, 7 January 2022 be in breach of a reasonable and lawful direction from the respondent and that a likely outcome would be that his ongoing employment with the respondent would be at risk. The letter also stated “For avoidance of doubt, this matter is serious …”
The respondent’s letter is technically incorrect in stating that the applicant was required to be fully vaccinated by 7 January as he was required to be fully vaccinated on his return to employment which was to occur on 11 of January. The respondent’s letter made no mention of, and did not advise as to the outcome of the applicants request to access his annual leave for a further three months which would have extended the period in which he had to get vaccinated under the COVIDSafe Workplace Policy by a further three months.
On 7 January 2022 Mr Starr emailed the applicant advising that he understood that the applicant was not fully vaccinated and therefore was not compliant with the COVIDSafe Workplace Policy and therefore would not be able to return to work on 11 January and would be placed on unpaid leave, however he may seek to access his personal leave entitlement. The respondent gave the applicant to 31 January 2022 to become compliant with the COVIDSafe Workplace Policy. Mr Starr makes no mention of the applicant’s request made on 22 December 2021 to access three months of annual leave following 10 January 2022.
On 7 January 2022 the applicant again requested that he be allowed to access three months of his annual leave following the end of his sick leave. As with his request made on 22 December the applicant sighted that the proposed additional leave would allow him more time to recuperate prior to being vaccinated and that his preferred vaccination option Novavax was scheduled to be rolled out during the requested additional leave period. The applicant proposed this as a temporary arrangement which appears to have been in response to Mr Starr’s email of 7 January 2022 in which Mr Starr had advised the applicant that should he request a temporary arrangement he should make written submissions in support of such a request by 14 January.
On 7 January 2022 the respondent wrote to the applicant advising that the period in which he was required to get fully vaccinated was amended to 1 February 2022 however as he was non-compliant with the COVIDSafe Workplace Policy he would not be able to return to work on 11 January 2022 and therefore would be placed on unpaid leave as of 11 January 2022 or may apply for his own leave.
The respondent in its letter did not refer to the applicant’s earlier request of 22 December 2021 to access his annual for three months which if granted would have meant that the applicant was not non complaint and that under the COVIDSafe Workplace Policy he would only have been required to get vaccinated before he returned to work.
The respondent again advised the applicant if he had not complied by 1 February 2022 he would be in breach of a lawful direction of the respondent and that his ongoing employment would be at risk. The respondent advised that it would consider his request for a temporary arrangement and advise him of the outcome.
The respondent on 1 February 2022, approximately three weeks after the applicant’s request and the date on which he was given to be compliant with the respondent’s policy, rejected the applicant’s request for a temporary arrangement. It is Ms Hammersley’s evidence that temporary arrangement refers to permission from the respondent, in certain circumstances to, for employees to return to the workplace for a short period of time without being vaccinated.
The applicant’s request for a temporary work arrangement was clearly misconceived. The applicant was not requesting permission to return to the workplace but rather to access three months of his annual leave in which he would not return to the workplace. The respondent in its response did not indicate to the applicant that his request for a temporary arrangement was misconceived and did not consider the applicant’s request to access his annual leave, a request which had remained unanswered since 22 December 2021.
The applicant at the time had a medical clearance which he had provided to the respondent on 18 January 2022 which stated that he did not need to be vaccinated from 18 January 2022 to 1 March 2022 as he had contracted COVID-19 on 11 January 2022. Whilst the applicant had not relied and could not have relied (it did not exist as at 7 January when the submissions were made) on the medical clearance when making his submissions for a temporary arrangement the respondent does not appear to have considered it when coming to its decision to reject the application.
It also not until 1 February 2022, the date which the applicant had previously been advised that he needed to become compliant with the COVIDSafe Workplace Policy and the rejection of his application for a temporary arrangement, that the respondent advises the applicant that he was now required to be fully vaccinated by 1 March 2022. The applicant was again advised that he was to be placed on unpaid leave and that if he continued to be unvaccinated as at 1 March he would be in breach of a reasonable and lawful direction from the respondent with the likely outcome being that his ongoing employment with the respondent would be at risk.
On or about 16 February 2022 Ms Hammersley inquired of the applicant as to what type of leave he would like to put through from 19 January onwards to which he stated that he believed it should be COVID Special Leave. Ms Hammersley advised that COVID Special Leave was not applicable and that he would need to pick a type of personal leave. The applicant’s request which was initially made on 22 December 2021 to access three months of annual leave from 10 January 2022 does not appear to have ever been responded to.
On 22 February the respondent advised the applicant that effective 12 February 2022 he had been placed on unauthorised leave without pay however he could apply to take his own leave. At this time the applicant had a medical clearance that did not require him to be vaccinated until 1 March 2022. On 1 March 2022 the respondent changed the applicants leave from 12 February from unauthorised leave to leave without pay.
On 8 March 2022 the respondent sent a show cause letter to the applicant informing him that the respondent proposed to terminate his employment on the basis of failure to follow a reasonable and lawful direction in relation to the COVIDSafe Workplace Policy. The respondent provided the applicant with an opportunity to provide a response as to why his employment should not be terminated. The response was to be received no later than 5.00pm on 15 March 2022.
On 14 March 2022 the applicant provided to the respondent medical clearance notice dated 14 March 2022 which advised that as he had tested positive to COVID-19 he had to self-isolate from 13 March 2022 to 19 March 2022. The notice advised that it could be used as evidence to show his employer that he had COVID-19 and that he could be released from self-isolation on 20 March 2022.
On 25 May 2022 the respondent wrote a letter to the applicant which advised that the respondent was following the recent advice from the ATAGI which recommended that individuals who have had prior infection to COVID-19 can be vaccinated with a COVID-19 vaccine as there is no requirement to delay vaccination. However, vaccination can be deferred for up to four months. This dose should be received by four months to remain up to date. The respondent noted that according to its records the applicant had tested positive to COVID-19 on 10 January 2022 and 13 March 2022.
The letter advised that in line with the stance being taken by NSW Health and ATAGI in relation to temporary exemptions from vaccination after having tested positive to COVID-19, the respondent accepted that for up to four months from date of infection the applicant was not required to receive his first COVID-19 dose. The respondent confirmed that the applicant was able to return to the workplace, pending a fully signed COVIDSafe Personal Support Plan Checklist which the applicant’s manager would contact him to further discuss.
The letter advised the applicant that should he choose not to respond to the letter, the respondent would make a decision based on the information which it had received and the applicant would continue to be placed on leave without pay or may take personal leave.
The respondent reiterated that a likely outcome of a failure to follow the direction, was that the applicant’s on-going employment with the respondent would be at risk. For the avoidance of doubt, the respondent advised that this matter is serious and if the applicant’s circumstances were to change such that he become compliant with the policy (upon evidence provided), this process would be put on hold.
There is no evidence as to what occurred in respect to the completion of a COVIDSafe Personal Support Plan Checklist for the applicant. However, the applicant did not return to active duties with the respondent.
It is the evidence of Ms Cakovska that the applicant submitted a medical certificate that put him off work until 1 July 2022. The medical certificate is not in evidence, and it is unclear as to when the certificate was submitted to the respondent.
On 25 July 2022 the respondent sent a show cause letter to the applicant. The letter informed the applicant of the respondent’s position in relation to his employment and whether it is reasonable to continue his employment. The applicant’s employment with the respondent was subsequently terminated in August 2022.

Incapacity/medical expenses

In respect to incapacity the respondent concedes in its submissions at [22] that if there is a finding against the respondent in respect to injury and s 11A then the applicant is entitled to payments of weekly benefits compensation with the respondent to have credit for the sick leave payments made to the applicant and medical expenses
The applicant claims ongoing weekly benefits compensation from 20 September 2021 pursuant to ss 36 and 37 of the 1987 Act.
Dr Khan, who examined the applicant on 19 January 2023, and diagnosed a panic disorder and a major depressive disorder was of the opinion that the applicant had been totally incapacitated for work from 13 July 2022 and that at the time of examination he continued to have no capacity for work. Dr Sivaruban who examined the applicant on 24 October 2022 was also of the opinion that the applicant was incapacitated for work. Dr Lim who examined the applicant on 11 August 2022 was of the opinion that the applicant was unfit for work and that he had been continuously incapacitated since ceasing work on 20 September 2021. Mr Nielsen who reported on the applicant on 17 August 2022 was also of the opinion that the applicant was unfit for work duties.
There are in evidence certificates of capacity certifying the applicant as unfit for work due to psychological injury from 25 August 2022 to 21 September 2022, from 23 November 2022 to 21 December 2022 and from 21 February 2023 to 16 May 2023. The proceedings were filed with the Personal Injury Commission on 10 March 2023.
On the medical evidence the applicant first attended on a doctor complaining of psychological issues on 16 September 2021 when he attended on Dr Marcus at which time the applicant appears to have suffered a panic attack in the doctor’s surgery. At that point Dr Marcus was of the opinion that the applicant’s psychological condition was such that he required two months off on “stress leave”. On 10 November 2021 Dr Marcus issues a further non WorkCover medical certificate certifying the worker off work from 10 November 2021 to 10 January 2022 due to a “medical condition”. The doctors clinical note from 10 November 2021 indicates that the medical condition from which the applicant was suffering was psychological in nature with the doctor noting that the applicant was highly anxious. Whilst Dr Marcus does not appear to have made a formal diagnosis in respect to the applicant’s psychological condition I am satisfied that at the time of his attendances on Dr Marcus on 16 September 2021 and 10 November 2021 when the medical certificates were issued that the applicant was suffering from a psychological injury. It is not unexpected that Dr Marcus in his capacity as a GP rather than a psychologist or psychiatrist did not make a formal diagnosis. The applicant has subsequently been formally diagnosed by Dr Khan, Mr Nielsen and Dr Sivaruban.
At least one further medical certificate was supplied to the applicant after the certificate of 10 November 2021 however that certificate is not in evidence. Whilst the applicant did at times after 10 January 2022 and prior to attending on Dr Lim on 11 August 2022 report to the respondent that he was ready willing and able to work there is little reason to believe that his psychological condition had in fact improved sufficiently for him to have the capacity to work. Work stressors continued to exist after 10 January 2022 with the applicant continuing to be placed under significant pressure to get vaccinated and his ongoing employment with the respondent being in question.
I therefore find that the applicant has had no current work capacity since 20 September 2021 and that he continues to have no current work capacity.
The parties have agreed the applicant’s PIAWE at $1,215.49.

SUMMARY

I find that:
a.     The applicant sustained a psychological injury arising out of or in the course of his employment on the deemed date of 20 September 2021.
b.     The applicant’s employment was the main contributing factor to his injury.
c.     The applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline, dismissal and /or the provision of employment benefits.
d.     The applicant has had no current work capacity from 20 September 2021 to date and has no current work capacity.
The Commission orders:
(a)    The respondent is to pay the applicant the following:
(i)$1,154.72 per week from 20 September 2021 to 30 September 2021 pursuant to s 36 of the 1987 Act;
(ii)$1,168.46 per week from 1 October 2021 to 20 December 2021 pursuant to s 36 of the 1987 Act;
(iii)$983.96 per week from 21 December 2021 to 31 March 2022 pursuant to s 37 of the 1987 Act;
(iv)$1,002.06 per week from 1 April 2022 to 30 September 2022 pursuant to s 37 of the 1987 Act;
(v)$1,035.83 per week from 1 October 2022 to 31 March 2023 pursuant to s 37 of the 1987 Act;
(vi)$1,078.72 per week from 1 April 2023 to date and continuing pursuant to s 37 of the 1987 Act, and
(vii)the respondent is to have credit for sick leave paid to the applicant for the period from 20 September 2021.
(b)    Award for the applicant on the claim for medical expenses pursuant to s 60 of the 1987 Act.
(c)    The respondent is to pay the applicant’s reasonably necessary medical expenses pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 408

15 August 2023