Uzunovska v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Uzunovska v Secretary, Department of Education [2023] NSWPIC 64
APPLICANT:	Diane Uzunovska
RESPONDENT:	The Secretary, Department of Education
Member:	Christopher Wood
DATE OF DECISION:	16 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant had sustained a psychological injury arising out of her employment which was a substantial contributing factor; sections 4 and 9A; respondent alleged any injury was wholly or predominantly caused by a reasonable action taken by it for the purposes of section 11A(1), in this case discipline; whether notification of Public Health Order requiring the respondent’s employees to be vaccinated and related guidelines constituted disciplinary action for the purposes of section 11A(1) or clear indication of at least the possibility of disciplinary action (given later) marked the commencement of action with respect to discipline; claim for incapacity by reason of psychological injury accepted in good faith by respondent; Held – sufficient evidence to establish that applicant suffered a psychological injury during the course of her employment and that such injury was not a consequence of a disciplinary process at the time the condition developed; any disciplinary process occurred later in time and was not a predominant cause of psychological injury; award for the applicant.
determinations made:	1. The applicant sustained psychological injury on or about 27 August 2021 arising out of or in course of her employment with the respondent. 2. The applicant’s employment with the respondent was the main contributing factor to her injury. 3. The injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect of a disciplinary matter. 4. The applicant has had no current work capacity for any employment since 13 October 2021. 5. The respondent is to pay the applicant: (a) weekly compensation benefits at the rate of $2,072.67 from 13 October 2021 to 12 January 2022 pursuant to s 36(1) of the Workers Compensation Act1987, and (b) weekly compensation benefits at the rate of $1,658.14 from 13 January 2022 to date and continuing pursuant to s 37(1) of the Workers Compensation Act1987. 6. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Diane Uzunovska, is a 47 year old teacher who prior to her dismissal from the Secretary, Department of Education (the respondent), had been employed for 17 years as a permanent full time employee of the respondent. She worked at Carlton Public School.
On 27 August 2021, along with all her teaching colleagues and many others who worked within the education system, she received an email from the Secretary of the Department advising that in accordance with a direction from the Health Minister that all employees in New South Wales schools would be required to be vaccinated against COVID-19 by
[1] Evidence was available from treating doctors to indicate that she had had other vaccinations.
8 November 2021 (Public Health Order). While she is not understood to be an “anti-vaxer”[1], the applicant says her personal values were to oppose the directive.
There were a series of communications from the respondent after 27 August 2021 as well as interactions at the school where the applicant was employed which caused her to develop anxiety and stress, ultimately leading to her being certified unfit for work from
[2] When the Department commenced taking action with respect to discipline is in dispute.
13 October 2021. She has not worked since that date and it would appear both from submissions made by counsel and documents before the Personal Injury Commission (the Commission) that she was involved in a formal disciplinary process with the respondent leading to termination of her employment in January 2022[2].
The applicant brings a claim for workers compensation benefits from 13 October 2021 by reason of incapacity for employment as a result of distress and panic attacks caused by what is pleaded as bullying and harassment (in the workplace).

ISSUES FOR DETERMINATION

The s 78 Notice issued by Allianz on behalf of the respondent on 21 October 2021, following a claim for compensation by the applicant, indicates that the matters in dispute are as follows:
(a) whether the injury arose out of or in the course of employment, s 4 of the Workers Compensation Act1987 (the 1987 Act);
(b) whether the applicant’s employment with the respondent was a substantial contributing factor to her injury, s 9A of the 1987 Act, and
(c) that the psychological injury claimed by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline or dismissal, s 11A(1) of the 1987 Act.
While the three issues referred to above remain in dispute, the central issue for determination was whether the psychological injury allegedly sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline or termination for the purposes of the section.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a telephone conference on 8 November 2022 before me. It was made very plain on that occasion that the respondent wished to maintain its defence under
s 11A(1) of the Act, leaving aside the need for the applicant to establish she was suffering from an injury arising out of employment.
The parties attended a conciliation/arbitration hearing on 17 January 2023 before me.
Mr Greg Horan, instructed by Ms Walsh of Turner Freeman, appeared for the applicant and Mr Paul Stockley appeared for the respondent, instructed by Ms Maloney of Hall & Wilcox. Ms Zreika of Allianz Insurance was also present. No representative from the respondent was present.
During the conciliation phase I again enquired of counsel as to the prospects of resolving the differences between the parties.
Mr Stockley, candidly indicated that the instruction from the respondent to his instructing solicitors and their client insurer, Allianz, was the respondent adhered to its view that
s 11A(1) ought be applied to the applicant’s claim in its favour and the Application for Review of Decision (ARD) had to proceed to Arbitration.
I pause here to note that it is not without significance that the respondent took this position in relation to the ARD.
There are several other actions involving unvaccinated teachers seeking workers compensation as a result of the respondent’s enforcement of the Public Health Order before the Commission[3]. In at least two of those cases there have been appeals against decisions made by Members of the Commission. It is obviously appropriate that each matter be approached on its own facts but it was clear that the respondent holds a strong view s 11A(1) ought prevail to preclude payments of workers compensation to teachers who following the respondent’s communication of the Public Health Order remained unvaccinated and may have developed a psychological condition as a consequence of the events from August 2021.
[3] These include Dawking v the Secretary, Department of Education [2022] NSWPIC 611 where the parties agreed to include the transcript of evidence from its witness Dr Wood in proceedings Davis v the Secretary, Department of Education [2022] NSWPIC 755.
I am satisfied the parties to the dispute understood the nature of the application. Ordinarily I would have used my best endeavours in the conciliation phase to encourage the parties to resolve their differences but the respondent’s position was made very clear and the matter necessarily had to proceed to Arbitration.

EVIDENCE

I have referred to similar cases involving unvaccinated teachers. In the matter of Dawking[4] an application was made to put into evidence transcript of the cross examination of one of the respondent’s witnesses, Dr Wood, in earlier proceedings.
[4] Supra.
No such application was made here. The evidence before the Commission was limited in scope for both parties. In preparing these reasons for decision, I have had to review such material that was available at some length in an endeavour to come to a sensible chronology of the development of the applicant’s alleged psychological condition against the background the events of which she complains and the communications from the respondent to her.
No objection was taken by the applicant to the late filing of treating general practitioners’ notes from the Edensor Road Family Medical Centre (Edensor Road Centre) in respect of which orders of production were issued at the teleconference. Similarly, the respondent takes no objection to the late service of up to date medical certificates as to the applicant’s alleged ongoing incapacity for employment. These have not been uploaded to the Commission’s system, but I have reviewed them in hard copy form.

Oral evidence

No application was made by either party to produce oral evidence or to cross examine witnesses including the applicant.

The applicant’s evidence

The applicant has provided one statement dated 24 August 2022, some 12 months after the events under consideration. As conceded by her counsel, it is perhaps unhelpful that the timeline of certain events is not better set out; indeed, the dates of certain events are conspicuous by their absence and must be inferred by reference to material filed by the respondent.
The applicant says at paragraph 5 of her statement, on 27 August 2021 she was advised of the respondent’s mandatory vaccine directive[5]. The applicant notes that her personal values led her to oppose the directive. That aspect is not expanded upon but pausing here, whilst the basis for her opposition was speculated upon by counsel for the respondent, it seems that she was not what might loosely be described as an “anti-vaxer” as she had otherwise been happy to receive vaccinations for other health issues.
[5] See below however, the directive, which was issued on that date pre-empted the, soon to be made public, decision of the Health Minister in relation to the vaccination of key workers in both health and education.
Up until the time of the announcement of the Public Health Order, the applicant says she and her colleagues were primarily teaching from home however, there was occasionally the opportunity for her to go into the school at which she taught.
The ARD does not include any of the communications the applicant received from the respondent. These however, do form part of the material in the respondent’s reply and were relied upon by both the applicant’s and respondent’s counsel in submissions. Therefore while they do not form part of the material filed in support of the ARD, for convenience I refer below to the communications issued by the respondent to its employed teachers including the applicant.
Consistent with the applicant’s statement, an email was forwarded by the respondent to all staff employed by it on 27 August 2021 advising that the Premier of New South Wales was intending to announce the Public Health Order requiring staff in the health and education sectors to be doubly vaccinated by 8 November 2021. This email, generic in nature, was silent as to any ramifications of an employee’s failure to be doubly vaccinated by
8 November 2021.
The next communication from the respondent to all staff (and again apparently received by the applicant) was dated 2 September 2021. This was issued by the Chief People Officer of the respondent. Apart from restating the fact that all staff were required to be vaccinated by 8 November 2021, it was informative as to where staff could be vaccinated, up to date vaccination information and was signed “Yvette”. Again, there was no reference to any potential disciplinary action or termination.
I note that the document signed “Yvette” uses the following words in conclusion “I want to remind you how important it is to have respectful conversations with colleagues and understand that we all have different personal circumstances”.
On 27 September 2021, over three weeks later, the respondent issued information in relation to vaccines and various other information as to how staff were to proceed or in the case of management, deal with unvaccinated staff. It included some “frequently asked questions” in relation to vaccine requirements[6]. One of the questions appearing in this document reads as follows:
“What do I do if one of my school staff refuses to be vaccinated and they cannot retain medical contraindication certificate”[7]
[6] Pages 11 – 31 of the Reply, in particular page 15 and thereafter.
[7] The document also sets out exceptions to the necessity to be vaccinated, including medical contraindication.
The response to this frequently asked question includes the following words:
“… If a school staff member refuses to be vaccinated and has no grounds for exemption then manager or school principal must advise the department that the staff member refuses to be vaccinated. The department will then take appropriate action, which can include termination of employment.”
Following the circulation of the 27 September 2021 email, the respondent issued a document entitled “COVID-19 Vaccination Guidelines”. The timing of this document is not clear from the material before the Commission but as it appears chronologically in the respondent’s Reply documents I infer that it was after 27 September 2021.
Included in the contents of the document is a section dealing with “Non Compliance”[8]. At paragraph 8.9 the following words appears:
“If staff are found to be, or suspected of being, in breach of these guidelines, then investigation and disciplinary action may[9] be undertaken by the department including termination of employment.”
[8] Section 9 of document, pages 30 and 31 of Reply to ARD.
[9] My emphasis.
It is not clear whether the applicant received this document and indeed much of the material in it seems, on its face, to be directed to people in a Departmental managerial role, including guidelines for record keeping. Further guidelines and assistance to staff were published on 5 October, these refer to the possibility of disciplinary action.
The next relevant document appearing in the Reply is a formal Determination under the Teaching Service Act dated 18 October 2021. The applicant had ceased working because of her alleged psychological injury on 13 October 2021.
The determination issued by the Secretary of the Department formalises the respondent’s position in relation to the Public Health Order, mandating that all employees must provide evidence of their vaccination or if unvaccinated, provide evidence of a medical contraindication certificate and reiterates the 8 November 2021 deadline.
On 12 November 2021 the Chief People Officer of the respondent published guidelines for the management of non compliance with COVID-19 vaccination requirements. Under the heading “Context” within the guidelines, the following paragraph appears:
“These guidelines outline the process and responsibilities for handling, investigation and disciplinary decision[10] making about conduct that is not compliant with the department’s Covid-19 vaccination requirements, public health orders, industrial determinations and any directions for implementing these (section 2.3)”.
[10] My emphasis.
Some of the issues addressed in the document deal with the paramountcy of protection of children but also extend to procedural fairness being afforded to employees who receive allegations of misconduct[11]. As part of the procedural fairness aspects, the following words appear:
“Procedural fairness also encompasses processes such as:
·making reasonable enquiries or investigations before taking disciplinary action ensuring that the investigator and/or decision maker have no direct interest and are unbiased”.
[11] Page 51 of Reply – 4.4 Procedural Fairness.
At 4.7 of the guidelines, the following words appear under the heading “Deciding each matter on its merits and taking appropriate action”:
“Disciplinary and remedial processes must be applied consistently, each matter must be treated on its individual merits and the result in action relevant to the individual matter. Irrelevant considerations must be disregarded.”
There are provisions for a disciplinary advisory panel and procedures for dealing with misconduct contemplated in addition.
At 5.24 under the hearing “Taking disciplinary action”, the following words appear:
“In deciding on disciplinary action the decision maker must consider all the material before them including the content of any further submissions from the employee.”
Although her statement does not deal with it, it appears to be common ground the applicant’s employment with the respondent was terminated in early 2022 following the disciplinary action outlined in the 12 November 2021 document[12].
[12] The fact of her termination is recorded in a report of Dr Hong.
Returning now to the applicant’s statement in terms of the chronology and the circumstances leading to her going off work on 13 October 2021 with a medical certificate from her treating doctor, Dr Romeo, the applicant says apart from receipt of the emails which caused her distress, she had some workplace encounters which she interpreted as exposing her to “negative stigma”.
At paragraph 8 of the applicant’s statement, she alleges one of her colleagues used words to the effect of “these anti-vaxers are keeping me at home on the couch and are the reason I can’t go out and socialise”.
The applicant says that this comment made her feel extremely isolated and ostracised, that her personal choice was being disrespected and exposed to negative stigma.
A further undated incident is recorded when the applicant alleges in a Zoom meeting around curriculum planning, she felt belittled and she was spoken to in a condescending tone by the Assistant Principal[13].
[13] Paragraph 10 p1 of the ARD.
After going off work on 13 October 2021, the applicant says she continued to be contacted by representatives of the respondent including her Principal concerning her capacity for work. At that stage it would appear from paragraph 18 of the Statement, it was anticipated the applicant would be off work for one month only but the Principal could not authorise this. The applicant says that although she had ceased work by this time, the conversations she had with the Principal and with a Ms Belinda Joudo, described as the Health and Wellbeing Advisor from the respondent, further impacted upon her.
She says that Ms Joudo continued to contract her by telephone despite requests by the applicant that she only email her. While the applicant remained off work she says that this conduct by departmental officers further impacted upon her, making her feel anxious, harassed and disrespected.
The applicant says that, again on an undated occasion, she was contacted by another staff member who said that she was being the subject of discussion by other teachers at the school and following that, she became further upset and distressed. The incidents are outlined but are undated. I note there is no additional lay evidence from any of the witnesses referred to by the applicant, similarly the respondent has not sought to put into evidence any statement from lay witnesses other than Dr Wood, a senior officer of the respondent (see below).

Medical evidence

The totality of the medical evidence before the Commission is that relied upon by the applicant or produced pursuant to a notice to produce upon the applicant’s treating general practitioner.

Edensor Road Centre – Part 1

The ARD includes notes from the Edensor Road Centre for the period of 13 October 2021 to 20 May 2022 only.
The respondent, without objection by the applicant, has put into evidence late material which bring the entries up to date to 14 November 2022. There is no indication of a consultation with this practice prior to 13 October 2021. On that day the applicant presented to Dr Romeo, reporting:
“Depression/anxiety. Panicky, anxious, feeling down since 27 August 2021 after receiving many emails from work to get Covid vaccinations. Felt harassed…”

A WorkCover form was completed by Dr Romeo at that time.
There are regular attendances at the practice thereafter and there is consistency of complaint.

Bondi Junction Seven Day Medical Centre

The notes from the Bondi Junction Centre run from 17 June 2021 (i.e. before the matters complained of by the applicant) through to 2 October 2022.
On 30 August 2021 a telephone consultation took place with Dr Andy Yang during which the applicant reported feeling anxious about COVID-19 vaccinations and records:
“… getting very anxious about school sending her information regarding Covid vaccination.”
There was a discussion regarding management of anxiety and the possibility of a mental health care plan. Later in the day on 30 August 2021, the applicant had a direct consultation in the surgery with a Dr Myfanwy Sahade. Dr Sahade records the applicant as being distressed about having to have the COVID-19 vaccination. There was a further entry at that time as follows:
“Catastrophising the vaccination – she will stick with her philosophy and lose her job and her income and not buy her own place as planned etc… has had all her other vaccinations.”
There is reference to having recovered but it is not clear to what this refers because the entry at that time goes on to say:
“Both anxiety tremors worsen over a week ago when it was found out she has to have compulsory Covid vaccination. Is highly anxious insomniac with this.”
A referral to uplift psychology is recorded.
On 5 September 2021 the applicant spoke to a Ms Lyons, a receptionist at the Bondi Road Centre, who informed the applicant that an item number relating to psychological counselling (item number 2,715 on the Medicare schedule) had been rejected because she had already received the maximum number of services for this item on referral from a
Dr Chippada.
Further entries on 14 September 2021 with a Dr Mahmoodie and again Dr Sahade on
1 October 2021 consistently record the applicant as being unwell, anxious and not prepared to take the COVID-19 vaccine.
The applicant saw Dr Sahade on two further occasions prior to ceasing work on
13 October 2021, these being on 8 October 2021 where there was consistency of complaint.
There is a relevant entry on 11 November 2021 where the applicant apparently told the registered nurse that she was receiving a mental health care plan through Dr Aroney.
The next relevant entry is on 12 November 2021 by which time the applicant had ceased work and Dr Sahade records melancholic depression and the applicant as being “on ‘indefinite leave’ for now”. She was also recorded as seeing a psychologist. There is a management entry two days later recording the fact of Medicare scheduled psychological services having reached their maximum. The applicant’s attendances at the medical centre thereafter are less frequent and relate in part to other issues. There are also records of incidents which might be relevant to the applicant’s psychological condition. I note an entry on 16 February 2022 when she was assaulted by her father and police were called. The impact of ongoing mental health plan is recorded on 30 March 2022 by Dr Sahade.
In May 2022 the applicant was apparently involved in an incident where she allegedly assaulted another patron, presumably at licensed premises. Dr Sahade records emotionally distressed and that the applicant had been charged with assault. Discussions with psychologist are recorded and anxiety is also mentioned as a presenting symptom.
On 13 July 2022 the fact of ongoing counselling being required is recorded and the applicant was sable and seeing a lawyer in relation to the club incident.

Edensor Road Centre – Part 2

The Edensor Road Centre records are in two parts being more recently updated by the Notice to Produce issued by the respondent. The records run from 13 October 2021 and the relevant general practitioner is Dr Romeo. Although some questions were raised by the respondent’s counsel as to why the applicant saw fit to see two sets of general practitioners, I note that the material recorded by Dr Romeo is largely consistent with that recorded at the Bondi Junction Centre. He first saw the applicant on 13 October 2021, recording depression and anxiety and the fact that since 27 August 2021 the applicant felt harassed. I note here that it was Dr Romeo who issued a certificate of unfitness for work on that day which lead to the applicant applying for leave and workers compensation benefits.
Dr Romeo referred the applicant to Dr Hong for psychological treatment. All the entries appearing in the Edensor Road Centre records record the applicant attending in relation to her mental health issues, anxiety and depression. No other complaints (unlike the Bondi Junction Centre) are recorded. It would seem that the applicant may have chosen to separate her psychological treatment from other general health considerations although in so commenting I note no explanation was offered.

Dr Hong

Dr Michael Hong is a consultant psychologist who saw the applicant at the request of
[14] Page 24 of the ARD.
Dr Romeo. His initial consultation was conducted by video link and is referred to in his correspondence to Dr Romeo dated 6 December 2021[14]. He records a history of the applicant, describing to Dr Romeo of increasing distress and anxiety and depressive symptoms in the context of the COVID-19 vaccine mandate and various emails with threats of termination of employment, disciplinary action if she is not vaccinated. He records no other relevant past psychiatrist history.
The report to Dr Romeo is silent as to work capacity but he does record the fact that the applicant “is pursuing WorkCover”.
Dr Hong’s second report is also addressed to Dr Romeo dated 4 April 2022. At that time he noted that the applicant had been off work since October 2021 and she was terminated in January 2022 over alleged misconduct. The applicant apparently denied ever experiencing excessively elevated mood or energy levels or developing psychotic symptoms. The applicant is recorded as having no energy, no concentration, poor memory and struggling to engage in cognitive behavioural therapy because she does not remember her sessions.
The applicant presented as a very poor historian who could not provide detailed history. Reference of panic disorder and alcohol misuse is set out in the report and suggested that the applicant may need to contact the public mental health team if Dr Romeo felt uncomfortable managing her without psychologist support.

Dr Rastogi

Dr Rastogi has provided a medico-legal report dated 24 August 2022 to the applicant’s solicitors. The history taken by Dr Rastogi is broadly in accordance with the applicant’s statement of the same date. I note here that respondent’s counsel suggests that it is curious that there should be such coincidence of date sometime after the relevant matters of which the applicant complains and one ought be cautious about accepting the history taken by Dr Rastogi and the adequacy of material available to her in taking the applicant’s history.
The background history taken by Dr Rastogi mentions no earlier psychological issues and records the applicant as feeling she did not have enough information to make an informed decision regarding the vaccine. The applicant described herself as having being an easy going, flexible, confident and socially interactive person who handled stress well.
Dr Rastogi’s consultation with the applicant was via telehealth and her recorded symptoms are consistent with those appearing in the general practitioner’s notes including anxious, feelings of hopelessness and worthlessness, loss of self-esteem and confidence.
Dr Rastogi’s diagnosis is adjustment disorder with anxious destress and panic attacks after the applicant having reported that she was gaslighted[15], berated, put down and humiliated, with no support provided.
[15] Whatever that might mean.
Dr Rastogi concludes the applicant’s psychological condition is directly attributed to her employment, with it being a substantial contributing factor and at the date of the report the applicant remained unfit to work in any capacity from October 2021 and she would continue to remain incapacitated.

Respondent’s evidence

In addition to the documents which I have summarised above for ease of reference in terms of an overarching chronology, the Reply includes a Departmental incident report form and the statement of Dr Paul Wood.

Incident report form

The incident report form is relevant to the time at which the applicant ceased work on
13 October 2021.
The basis upon which the applicant might be able to seek leave was apparently contested and the Principal indicated, according to the applicant, he did not have the authority to grant indefinite leave in the context of COVID-19.
The description of incident/hazard appearing in the document[16] is repeated below:
“The teacher (Diane) advised that she is effected by the need to be vaccinated in order to keep her job. She advised that she feels bullied and harass [sic] in relation to the mandatory vaccination mandate. She sought medical treatment today 13/10/2021 and obtained a certificate of capacity. Diane is struggling to sleep, she feels that she is anxious and beginning to become depressed.
Employee assistance program has been offered.
The doctor has diagnosed her with depression and anxiety as a result of pressure from this. He advised there was no pre-existing factors.
Diane would like to lodge workers compensation plan that the doctor has given her from today 13 October 2021 until 18 November 2021 off work.
[16] Page 1 of the Reply.
Executive staff will be notified.”
That document was completed by the Principal who apparently is a Mr Steven Mead.

Dr Paul Wood

Dr Wood, who is the respondent’s Executive Director Educational Standards, has provided a statement dated 31 May 2022. Dr Wood’s statement was in evidence in the other proceedings to which I have referred in my opening remarks. The transcript of the cross examination of Dr Wood in Davis was before the Commission in Dawking. There was no application to put Dr Wood’s evidence beyond his statement before the Commission in this matter.
Dr Wood’s statement annexes emails and other material which is consistent with that already set out above. In respect of the 27 August 2021 email, he says at paragraph 7 of his statement that:
“The department sent an email to all school based staff which advised of the NSW Government’s intention to introduce the Covid-19 vaccination mandate and provided what information we had at that time. We wanted to ensure our staff were kept updated as the situation was moving quickly…”
Dr Wood says that the determination of 18 October 2021 under the Education (School Administrative and Support Staff) Act 1987 and the Teaching Services Act 1980 retrospectively established that all employees of the respondent must be vaccinated with two doses of COVID-19 vaccine and provide evidence of that vaccination[17]. He says that on 22 October 2021 guidelines were given to managers to assist them managing employees’ compliance with the Public Health Order and at that time employees were advised that their failure to comply with the direction would result in disciplinary action.
[17] Paragraphs 13 and 14, page 67 of the Reply.
This was re-affirmed in subsequent communications on 1 November 2021 and
12 November 2021 the latter is the document outlining the disciplinary process. Each matter was to be reviewed and handled individually based on the circumstances.

SUBMISSIONS

The submissions of the parties are recorded in the transcript which can be obtained on request. I summarise these as follows.

Respondent’s Submissions

As the respondent maintained its position in relation to s 11A(1) of the 1987 Act it bears the onus on point and Mr Stockley made his submissions first. There were three planks to those submissions, first that the lay evidence of the applicant herself, called into question her reliability. The respondent also says that the nature of the injury relied upon was not specified in the ARD such that the Commission could not make a determination if the applicant suffered an injury “simpliciter” or an aggravation of an underlying condition. This in turn lead to questions regarding the sufficiency of the medical history relied upon by
Dr Rastogi. The third aspect of the respondent’s position was that the contemporaneous medical records of the applicant’s treating practitioners, combined with the effects of the emails received by the applicant, demonstrated that her condition was wholly or predominantly a function of disciplinary action taken by the respondent. The respondent was communicating the necessity to have two vaccinations without a medical contraindication and in executing the order from the State government the respondent, in telling the applicant about it, was taking action or foreshadowing action to be taken in connection with discipline or termination of employment. The respondent says the applicant, having identified 27 August 2021 as the critical date for the emergence of her psychological condition, identifies what caused her distress i.e.; a consequence of the respondent’s reasonable disciplinary action in sending the email of that date.
The respondent appears to concede that the applicant’s response was consistent with her feeling depressed and this is entirely logical. That unless the applicant “wanted to throw her job away”, she would not have embarked on the course she did in deciding to take leave from 13 October 2021.
Turning to Dr Rastogi’s report and the nature of the injury asserted by the applicant, the respondent notes that it is difficult to determine what information Dr Rastogi relied upon although she does refer to having had the opportunity to review relevant material.
The respondent urges caution in relation to the opinions expressed by Dr Rastogi because the history contained in her report, which is the same date as the applicant’s statement, is almost identical in the latter document. No reference is made to treating general practitioners notes by Dr Rastogi and this, from the respondent’s perspective, invites criticism. Caution is also urged around accepting that there was no premorbid condition and the suggestion the applicant was essentially a happy, outgoing person prior to the receipt of emails ought be rejected.
As to the general practitioners and whether there was something over and above the announcement of the vaccine mandate that impacted on the applicant, the respondent says as early as 30 August 2021, some three days after the announcement, Dr Yang of the Bondi Junction Centre was recommending a mental health care plan such that the respondent says this is consistent with her being anxious about the need for the vaccine[18]. In other words, there were no other contemporaneous factors which were causal of her condition.
[18] Page 55 of the ARD.
The respondent says the next relevant entry is in treating doctor’s notes of Dr Romeo on
13 October 2021. The respondent says that Dr Romeo, in recording a depressive anxiety disorder, also records that the relevant date for such condition was (since) 27 August 2021. In also identifying the entry of Dr Aroney of the Bondi Junction Centre dated
3 September 2021, the respondent again raises the reliability of the applicant’s evidence on the absence of pre-existing symptoms.
The respondent points to several entries in the treating doctors notes, including Dr Hong, which record the emails which the applicant describes as harassing etc as evidence that all of the applicant’s problems go back to 27 August 2021 when the action or action to be taken in respect to discipline or termination commenced.
The respondent says that what may be the opinion of a qualified specialist in August 2022 cannot overcome the contemporaneous records of three treating general practitioners and a psychiatrist concerning the applicant suffering anxiety consequent upon receipt of the departmental communications (emails). That is what caused the applicant’s condition.
Finally, the respondent contends that the Commission ought take into account that those who are treating the applicant in 2021 were “stymied” in their task by the fact that the applicant already had a mental health care plan in place and the mandated number of Medicare consultations had been exhausted. Notations supporting this position appear in both sets of general practitioner clinical notes.
There seems to be some uncertainty in relation to dates as to when the mental health care plan actually commenced and the respondent withdrew from its initial position slightly to propose that the applicant’s treatment surrounding mental health was a little bit unclear and did not sit well with the suggestion that she had no previous psychiatrist attendances. It says if there had been a simple explanation the applicant ought to have clarified the ambiguity. The respondent called no evidence on work capacity and accepts the up to date medical certificates in good faith in arguing the relevant stressors causing the applicant’s anxiety were the departmental emails which fall fairly within the purview of s11A(1).

Applicant’s submissions

The applicant’s submissions were concise. The applicant contends that the injuries described by the various treating practitioners and recorded in their notes in August, September and October are matters which arise out of emails and interaction by the applicant in her workplace, they clearly occurred at work and in the context of employment.
The applicant had continued to work up until August, attending school from time to time in line with COVID-19 directions. Medical evidence presented satisfies the definition of injury with employment as the main contributing factor.
The applicant points to Dr Rastogi who says her psychological condition is directly attributed to her employment and the applicant says it is clear that on or about
27 August 2021 something of significance happened. Whilst the possibility that a pre-existing condition may have been aggravated is raised there is an absence of evidence on point.
Turning to the emails received in August and September 2021, what are described by the applicant as the “critical period”, the applicant says that the Commission could not be satisfied that the email communications could be regarded as being with respect to disciplinary or termination action. The applicant says there is nothing in the first email from the departmental secretary dated 27 August 2021 that is with respect to discipline or termination of employment. It is a generic email to all staff advising the government’s decision and it was likely to make the Public Health Order.
In respect of the departmental email dated 24 September 2021, which provided further information to departmental staff, the applicant says[19] the respondent was essentially still encouraging its employees to get vaccinated and otherwise giving information in relation to the mandate. It did not move to a point where it was taking action with respect to discipline or termination for failing to be vaccinated.
[19] Page 11 of the Reply.
The applicant says that all the actions taken in relation to her in September and October were not in relation to discipline despite the fact that she may have held fears for her job as an unvaccinated person.
The applicant says that both her statement and the report of Dr Rastogi identify various incidents which amount to relevant causative factors and it was incumbent upon the respondent to provide expert medical evidence in reply to properly discharge its onus.
In respect of whether the respondent’s actions were causative of the applicant’s condition, the applicant says the actions referred to in her statement and the report of Dr Rastogi concerning the interactions at school or during Zoom meetings are not actions taken in the accordance with reasonable disciplinary action. By way of example, the remarks attributing to the staff member that anti-vaxers keeping her at home. All of these interactions logically occurred before 13 October 2021.

The applicant concedes that the disciplinary process which must have commenced at some point given the applicant’s employment was ultimately terminated, was well after
[20] This is not in evidence.
13 October 2021 and identified 18 November 2021 as when the applicant received a personal letter advising her of the commencement of disciplinary action[20].
Finally, the applicant’s counsel said the Commission could find a deemed date of injury as 13 October 2021, which would capture appropriately that period between 27 August 2021 and the date the applicant ceased working during which the series of events impacted her psychological condition are identified.
The applicant’s overarching final submission is that the Commission does not have to get anywhere near the question of determining whether the action taken by the respondent was reasonable because it was continuing to develop its position (on taking disciplinary action) well into September 2021.

Respondent’s reply

In response to me raising the point that there seemed to be a live issue as to when disciplinary action commenced, Mr Stockley pointed to the 5 October 2021 communications by the respondent as evidence action with respect to discipline i.e.; it was expressly referred to.

FINDINGS AND REASONS

The evidence before the Commission is limited. The applicant’s statement failed to set out in chronological order or specify actual dates of most of the incidents upon which she relies. This is perhaps explained by her being a poor historian.
The respondent submitted no medical evidence of its own to support its position and seeks to draw inferences from the material relied upon by the applicant to show an inconsistent or incomplete history. The respondent did not seek to cross examine the applicant nor did it call any lay evidence beyond that of Dr Wood. It would have been a very simple matter for the respondent to call evidence from the Principal, the Assistant Principal or other departmental staff referred to in the documents or by the applicant if it wished to test the applicant’s credit or contest the nature of the events to which she refers. It do not do so.

Injury

The applicant was on the face of all the material a functioning and competent school teacher up until 13 October 2021. There are legitimate questions raised by the respondent as to whether the applicant had some pre-existing psychological issues. That she was already an anxious character is, on balance, likely but despite that she was a fulltime functioning primary school teacher up until late August 2021.
I am satisfied based on the contemporaneous records of two general practices and several practitioners within them that the email of 27 August 2021 date impacted her psychologically. As a result of further communications and incidents in the workplace which also went uncontested by the respondent, the applicant got to a point where she felt incapable of carrying on by reason of anxiety, distress and panic attacks. She had a capacity to work (there being no evidence to the contrary) in the months before August 2021 in the midst of the COVID-19 pandemic and pressed on for several weeks thereafter. The medical evidence overwhelmingly supports the proposition that she developed a psychological condition as a result of workplace events from 27 August 2021.
I am satisfied on the balance of probabilities that the applicant sustained psychological injury in the course of her employment. I agree with the applicant’s counsel that this injury commenced with the receipt of the email on 27 August 2021 and there were a series of events thereafter which saw her become incapacitated for work on 13 October 2021, with a certificate being provided by Dr Romeo.
The respondent casts doubt as to whether the applicant was the outgoing, social person she says she was but again there is no reason to not accept the applicant on point.
Even if there were pre-existing anxiety issues the applicant’s employment between
27 August 2021 and 13 October 2021 was at the very least a substantial contributing factor to her condition.
Sections 4 and 9A are satisfied.

Section 11A(1) of the Workers Compensation Act 1987

Section 11A(1) provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent contends if the applicant has suffered an injury in the course of her employment, that it must logically be the function of reasonable action taken or to be taken with respect to discipline or termination.
The applicant contends that the Commission cannot characterise the action taken from
27 August 2021 at least up until well into October and potentially to 18 November 2021 as action with respect to discipline or termination. The respondent is clear in its own mind that the action taken by it was in accordance with the conduct contemplated by the section.
The applicant rightly concedes that action with respect to discipline must have commenced at some point because the applicant’s employment was ultimately terminated, it is simply a matter of common sense.
In response to a question by me at the conclusion of the applicant’s submissions,
Mr Stockley said there could be no doubt that the action or action to be taken was with respect to disciplinary action or termination because the applicant herself considered her position with the respondent to be in jeopardy. He drew attention to the email of
[21] Page 31 of the Reply.
5 October 2021[21] which set out that disciplinary action may be a consequence of the failure to comply with the Public Health Order.
I emphasised reference in the respondent’s emails to staff to the word ‘may’ in it communicating the risk of disciplinary for unvaccinated earlier in these reasons for decision. Mr Stockley said that the (disciplinary) sanction was clearly in contemplation and therefore action taken or to be action as a relevant test for s 11A(1) had clearly been satisfied. Giving the word ‘may’ its ordinary meaning the respondent was at best expressing a possibility. That a sanction is a possibility seems to be problematic in arguing that action taken was with respect to discipline.
No mention is made in the early communications of consequences for staff who were not vaccinated by the due date. Rather the generic communications are appropriately detailed and supportive if not pastoral in their tone. This no doubt reflected the respondent’s honest desire to provide a safe workplace both for its staff and the pupils in its care. Mr Stockley suggested the fact that the applicant reported fearing she may lose her job points to her understanding the respondent was taking disciplinary action or proposing to take. Beyond a treating general practitioner recording the applicant’s alleged concerns, there is no evidence as to what she was thinking and whether there was a meeting of the minds on point as early as 27 August 2021 or prior to 13 October thereafter. What the applicant, who was already presenting with symptoms consistent with anxiety and stress, may have feared, possibly consistent with her diagnosed condition does not establish the respondent was taking or intended to undertake action with respect to discipline or termination of her employment. Indeed the absence of any reference to the issue bespeaks no such intent on point at that time. Surely a well resourced and sophisticated employer such as the respondent, which was taking maximum care for its employees and providing otherwise clear and detailed information, would have spelt out the possible consequences much sooner. It did not do so until 27 September 2021 and even then it was expressed as one potential outcome by use of the word “may” (be taken). By the time of the example
Mr Stockley relied upon emerged there had been a series of events and communications impacting the applicant’s psychological condition. The respondent’s position a retrospective view rather what was being conveyed and impacting upon the applicant at in the period from 27 August until she ceased work.
The formal resolution to proceed by way of disciplinary action and the adoption of the Public Health Order did not ensue until late October 2021 with communication of the respondent’s intentions (actions to be taken) issued on 12 November 2021. I accept that a letter formally contacting the applicant in relation to her personal disciplinary process did not issue until
[22] The respondent did not raise any objection to the applicant’s solicitors instructions on the date of the communication.
18 November 2021[22]. By this point there can be no doubt disciplinary action had commenced but the applicant had not worked for over a month by then.
The respondent had no choice but to act upon the decisions of the NSW Government (see reasonableness below). There is however, nothing before the Commission at least until several weeks after 27 August 2021 which suggests that at the very least action with respect to discipline was being taken or was to be taken. To the extent that the issue was raised, it was expressed in uncertain terms against a background of otherwise detailed fulsome communications. It raises the legitimate rhetorical question “why hide it?”.
Dr Wood’s statement relied upon by the respondent in this and other cases before the Commission, does no more than deal with the process the respondent undertook. It does not address the respondent’s intentions in communicating in the way in which it did in late August 2021 and the initial weeks of September 2021.
If I am wrong in my conclusion that disciplinary action did not commence until
18 November 2021 or giving the respondent the benefit of the doubt close to just before or after late September, the respondent has failed to directly address the evidence of the applicant detailing other workplace events where she was bullied and belittled by colleagues and more senior teachers in managerial roles. It would have been easy for evidence from readily identifiable individuals to be called by the respondent. It chose not to do so. These uncontested incidents also impacted the applicant’s psychological condition and constitute substantial contributing factors which did not form part of a disciplinary process. They were probably unintended consequences of it but did form part of the actions the respondent was taking.
The combination of the impact of the communications at least up until late September and the uncontested incidents which the applicant says impacted her psychological state on balance negates the respondent’s argument that the predominant cause of her condition was reasonable action taken or to be taken by it with respect to discipline or termination.
I also note the Department’s failure to call any medical evidence as to the predominant cause of the applicant’s injury does not assist its position[23].
[23] (2017) NSWWCCPD 6 Hamad, Davis and Dawking deal with the difficulty this necessarily creates for the respondent.

Was the action reasonable

Given my conclusion that disciplinary action or action with respect to discipline whenever it commenced some weeks after 27 August 2021 was not a substantial contributing factor to the applicant’s psychological condition it is not necessary for me to determine the reasonableness of the respondent’s actions however described. For completeness however, there is no doubt the respondent indeed the State and Federal governments were dealing with a rapidly evolving health emergency as part of a global pandemic. It seems to me that the actions taken were in such circumstances reasonable and necessary to safeguard public health even if they were not of a disciplinary nature until several weeks after 21 August 2021. The communications in the early part were detailed, informative and concerned to ensure respectful communication consistent with a reasonable process, no matter how described, in the context of the Public Health Order. I accept the action taken in relation to the respondent’s employees including teaches was reasonable[24] even though not of a disciplinary nature.
[24] As an example; while not relevant to the claim, the defences available to public and statutory authorities under the NSW Civil Liability Act 2001 Part 5 reflect the difficulties in making an argument the action was not reasonable.

Incapacity / medical expenses

The respondent in good faith accepts the up to date medical certificates concerning the applicant’s capacity for work and puts forward no evidence of its own.
It follows that the applicant is entitled to an award in her favour and payment of reasonable and necessarily incurred medical expenses pursuant to s 60 of the 1987 Act.

Summary

The applicant sustained a psychological injury on 13 October 2021 arising out of or in the course of her employment with the respondent from 27 August 2021 to that date.
The applicant’s employment with the respondent was the main contributing factor to her injury.
The injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent in respect of discipline or termination of employment in the relevant period referred to in 127 above.
The applicant has had no current capacity for any employment since 13 October 2021 and the respondent is to pay the applicant:
(a) weekly compensation benefits at the rate of $2,072.67 from 13 October 2021 to 12 January 2022 pursuant to s 36(1) of the 1987 Act, and
(b) weekly compensation benefits at the rate of $1,658.14 from 13 January 2022 to date and continuing pursuant to s 37(1) of the 1987 Act.
The respondent is to pay the applicant’s expenses pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 64

16 February 2023