White v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	White v Secretary, Department of Education [2023] NSWPIC 113
APPLICANT:	Carol White
RESPONDENT:	Secretary, Department of Education
Member:	Jacqueline Snell
DATE OF DECISION:	17 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly compensation and medical treatment expenses payable the for primary psychological injury sustained arising out of or in the course of her employment with the respondent; the respondent disputes the applicant’s claim; the respondent disputes the applicant has sustained primary psychological injury arising out of or in the course of her employment with the respondent and also disputes the applicant has suffered an incapacity for work resulting from injury as alleged; in the alternative, the respondent essentially disputes the applicant has an entitlement to compensation payable as her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal; Held – the applicant sustained primary psychological injury arising out of or in the course of her employment with the respondent, with her employment with the respondent being the main contributing factor to injury; the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal; the applicant has entitlement to weekly compensation payable under section 36(1) and the applicant has an entitlement to medical and related treatment payable under section 60.
determinations made:	1. The applicant sustained psychological injury arising out of or in the course of her employment with the respondent on 7 August 2021, and between 27 August 2021 and 8 November 2021. 2. The applicant’s employment with the respondent was the main contributing factor to injury. 3. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline, dismissal, and/or provision of employment benefits to workers. 4. The respondent is to pay the applicant weekly compensation (subject to indexation) between 5 October 2021 to 23 December 2021 at the rate of $781.10 per week pursuant to s 36(1) of the Workers Compensation Act 1987. 5. The respondent is to pay the applicant’s medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Carol White (Ms White) works with the Department of Education (the Department) in the role of School Learning Support Officer (SLSO) and Teachers Aide. She works at Mulbring Public School. Ms White commenced working with the Department in 2017 and has been working in her current role since February 2021. Ms White ceased working on 5 October 2021. Ms White is currently 46 years of age.
In these proceedings I understand Ms White claims weekly compensation payable pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) from 5 October 2021 ongoing. Ms White’s Pre-Injury Average Weekly Earnings (PIAWE) are agreed to be $822.21.
Ms White also claims medical and related treatment expenses payable under the 1987 Act.
The circumstances of Ms White’s injury the subject of these proceedings are essentially described in the following terms:
a) primary psychological injury sustained on 7 August 2021 in the following circumstances:
“The applicant was teaching a disabled student who subsequently passed away. As a result the applicant suffered reported failed sleep, irritability, anxiety, emotional dysregulation, intrusive racing thoughts and sadness.”
b) primary psychological injury sustained between 27 August 2021 and
8 November 2021 in the following circumstances:
“As a result of events arising out of, or in the course of employment, concerning the mandate to be vaccinated commencing on 27 August 2021 to 8 November 2021, the applicant suffers adjustment disorder and anxious distress.”
Ms White’s claim is declined, and she has been issued with notices dated 14 October 2021 and 13 January 2022 in which she has been advised of the decision to decline her claim.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether Ms White sustained psychological injury arising out of or in the course of her employment with the Department as alleged;
(b)    whether Ms White’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the Department with respect to discipline, dismissal and/or provision of employment benefits to workers , and if not
(c)    whether Ms White has suffered an incapacity for work since 5 October 2021 as alleged.

Procedure before the Personal Injury Commission (Commission)

Ms White’s claim for compensation came before me for preliminary conference on
7 July 2022. With Ms White’s claim unresolved at preliminary conference, her claim came before me for conciliation/arbitration hearing on 26 September 2022. Mr Dodd of counsel appeared for Ms White, and Ms Roberts of counsel appeared for the Department. Ms White was present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. The arbitration hearing did not conclude during the day of 26 September 2022, and I issued directions for the lodgement and service of written submissions by both parties on the evidence of
Dr Wood in Matter No W1987/22 which is evidence admitted in these proceedings, by consent, together with legal argument that was the subject of written submissions in Matter No W1987/22. This has now occurred.

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,
(b)    Reply and attached documents, and
(c)    Evidence of Dr Wood in Matter No W1987/22.

Oral evidence

While neither party sought to adduce oral evidence or cross examine any witnesses, by consent the evidence of Dr Wood in Matter No W1987/22 was admitted into evidence in these proceedings.

FINDINGS AND REASONS

Brief review of evidence

Statement of Ms White

Ms White provided a statement dated 13 October 2021[1].
[1] ARD at page 10.
In her statement Ms White said that on 27 August 2021 she received an email from Georgina Harrison “stating the mandatory vaccination requirements for all staff as per the announcement” with the referred announcement being Public Health Order 2021 (COVID-19 Vaccination of Education Workers) (PHO), which reportedly required staff to be fully vaccinated by 8 November 2021, or earlier if attending work on school grounds. Ms White said on 2 September 2021 she received an email in which she was reminded of the mandatory vaccination requirement by 8 November 2021 or 25 October 2021 “depending on which stage you work in with the return to school plan” and in which she was strongly encouraged to book her vaccination “whichever vaccination is available”. Ms White said on 17 September 2021 she received an email in which she was reminded she needed to be fully vaccinated by 8 November 2021.
Ms White said on 27 September 2021, during the school holidays, she received a telephone call from Donna Lennard, her principal, in which Ms Lennard asked her of her intention to vaccinate. Ms White said she told Ms Lennard she was seeking medical advice on the issue but received caution that if she remained unvaccinated by 8 November 2021 Ms Lennard “would need to pass that information on to Martin Rosser, Director Educational Leadership, Cessnock Principal Network”. Ms White said Ms Lennard also “mentioned” that Ms White’s role with the Department required her to be vaccinated despite the changes anticipated for unvaccinated persons as of 1 December 2021. Ms White went on to say:
“Next, Donna brought up a student who I had worked closely with and who sadly passed away in August and asked me that if the student was ‘still here’ would my decision on vaccination be different. I told her that I could not answer that as it was hypothetical question and she had known how much the passing of the student affected me so perhaps should not have asked that personal question.
I asked Donna if the information she was passing on to Martin would mean that I would be terminated by the Department of Education on or after the 8^th of November to which she replied ‘Yes’.”
Ms White said on 5 October 2021 she attended work in accordance with the roster that had been sent to her by Ms Lennard. She said she “was helping a few students at school that morning with their work and everything appeared to be ok”. However, she explained:
“To my surprise, Donna called me in to her office around 10.45am. She insisted on having our administration manager in the meeting as her support person but failed to invite me to request a support person which I felt was unprofessional and I felt intimidated by this. The administration manager sat in on the meeting and took notes.
Donna proceeded to inform me that she had received a phone call from the Department of Education giving her directions to send me home as I am currently unvaccinated and to work from home until further instructions from the DoE on Monday 18^th of October. I expressed my despair and was visibly upset, shaking, anxious and intimidated as Donna told me that it is best to send me home as other people may be ‘distressed’ at having an unvaccinated staff member on site.
I told Donna that I felt this was discrimination and I had been treated poorly.”
Ms White explained she went home and worked from home as directed by Ms Lennard. In her statement Ms White also relevantly stated:
“I believe the State Government who forced my employer to mandate vaccinations should be liable for my adverse reactions, as it was a foreseeable outcome, when making the mandate.
…
It is my view that it is not appropriate, reasonable or necessary to lock myself out because I decided to be unvaccinated, and the State Government and my employer have removed my ability to work and contribute to society.
As a result of my mandatory eviction from my job, I now suffer from adjustment disorder, generalised anxiety disorder and depression. I am also suffering from Post-Traumatic Stress Disorder.
…
I am strongly opposed to the vaccine mandate.
…
I have been totally incapacitated for work as a result of the events arising out of, or during my employment with my employer and from 27 August 2021 the feeling are increasing.”

Letter of Donna Lennard

In a letter dated 4 November 2021[2] addressed to “to whom it may concern” Ms Lennard relevantly wrote of Ms White’s claim for compensation resulting from psychological injury:
“I made a phone call to Carol White on 27 September 2021, re-advising the mandatory requirement for vaccination and seeking her current decision so that decisions could be made around staff rostering and advice by the Department in terms of employee vaccination status. She then sent emails which I forwarded to Mr Martin Rosser, Executive Director, Cessnock Network. I do not believe that this phone call or DOE emails caused an injury.
The employee return to work on Tuesday 5th October. She was going to be ‘Working from Home.’ However, she then submitted application for leave and the workers compensation Certificate of Capacity. To my knowledge, there are no open EPAC matters, however I do believe that our Executive Director, Mr Martin Rosser has reported Carol White to Professional and Ethical Standards for inappropriate sending of emails, ignoring DoE complain handling procedures.
…
The employee, Carol White, has expressed opposition to vaccination now for a considerable time frame, months prior to the department’s mandatory requirement being announced.
In regards, to the number of emails received by staff, I note that SASS and teaching staff have had a total of 7 emails mentioning vaccination either providing information or surveying staff to assess numbers vaccinated in the period 9th August – 6^th October. Considering this is a mandatory requirement for employment due to a NSW Public Health Order, I do not find this to be excessive, considering it is over a 3 month time period. The requirement by DoE for all staff to be vaccinated is ‘Duty of Care’ and an NSW Public Health Order.
Carol has been suffering from increased depression since the loss of a student she was supporting in her role at Mulbring PS. The death of the student occurred on 7^th August 2021. Carol was provided with support by EAP, with two on-site visits. Carol also continued with phone consultations and support through EAP. She also told me she had visited her own GP and been given medication.
Therefore I have concerns that this claim is not a direct result of stress caused by DoE requirements and communication.”
[2] Reply at 1.

Statement of Dr Paul Wood

Dr Wood provided a statement dated 31 May 2022 to which are attached a number of annexures[3]. Dr Wood is the Executive Director, Educational Standards. At the time of making his statement, Dr Wood had been in this role for approximately three months, prior to which he was the Executive Director, COVID-19 Taskforce between July 2021 and February 2022.
[3] Reply at 2.
Dr Wood’s statement referred was also in evidence in a claim made by Melissa Davis against the Department for compensation payable under the 1987 Act, which came before Principal Member Bamber (Melissa Davis v Secretary, Department of Education)[4] for arbitration hearing in the Commission. Dr Wood was cross examined on his statement in those proceedings and the transcript relevant to his cross-examination in those proceedings is in evidence in these proceedings.
[4] W1987/22.
Dr Wood said in sending out an email to all school-based staff during the morning of
27 August 2021, the Department sought to ensure staff were kept abreast of the Government’s intention to introduce a COVID-19 vaccination mandate, as a public announcement was due to be made by the Premier at 11.00am that day. Dr Wood accepted it was very likely that he first learnt the PHO was to be introduced very close in time to “…the 27th. At that point in time government decisions were being made and were implemented very quickly.”
Dr Wood acknowledged the email was a “blanket email” that had been sent to all school- based staff and informed the reader all public and preschool staff were required to be fully vaccinated by 8 November 2021. Dr Wood acknowledged a further email was sent out to all school-based staff on 8 September 2021 which reinformed the reader all public and preschool staff were required to be fully vaccinated by 8 November 2021.
Dr Wood was asked about the “COVID-19 Vaccination Guidelines” issued by the Department (the Guidelines), with particular reference to [8.1], [8.8] and [8.9], which provided:
(a)    no special leave provisions available to those who refuse to comply with the Guidelines;
(b)    if staff were found to be, or suspected of being, in breach of the Public Health Order, the NSW Police could be called and infringement notices or criminal charges may be laid, and
(c)    if staff were found to be, or suspected of being, in breach of the Guidelines, then investigation and disciplinary action may be undertaken by the Department, including termination of employment.
Relevant to (a) Dr Wood was unable to explain why no special leave provisions were made available to those who failed to comply with the Guidelines, relevant to (b) Dr Wood explained this information was provided so as to ensure staff were aware of the possible consequence of a breach of the PHO, and relevant to (c) Dr Wood deferred to the Professional and Ethical Standards group within the Department as being responsible for disciplinary matters and the Workplace Relations group within the Department as being responsible for industrial matters.
When Dr Wood was asked whether the directions provided by his colleagues responsible for disciplinary matters differentiated between all teachers and any particular teacher, Dr Wood explained that while the directions would apply to all teachers, there was opportunity for an individual teacher to submit a medical contraindication. In so far as Dr Woods was aware, the only exemption available was through a medical contraindication.
Dr Wood acknowledged a breach in the Department’s Code of Conduct could result in discipline, the size and scale of which would depend on the nature of the breach. Dr Wood acknowledged that the Code of Conduct would be the document that outlines the expectations of employee behaviour within the Department. Dr Wood said that in August and September 2021, non-compliance with requirement to be double vaccinated by 8 November 2021 had resulted in the application of disciplinary procedures.
Dr Wood said policies and procedures were put in place to support schools and acknowledged that such policies and procedures were not necessarily provided with end dates. Dr Wood said policies were revised as circumstances changed.
Dr Wood accepted that if a person’s employment with the Department was terminated as a result of discipline, this circumstance of termination would remain on their record and would not be erased over time.
While Dr Wood was not prepared to accept suggestion there were 50,000 teachers employed by the Department as of September 2021 and said he did not have specific details as to the number of teachers who had complied with the direction to be fully vaccinated by 8 November 2021, he said there had been a very high compliance rate in that 90% of staff were double vaccinated. Dr Wood said the non-compliance rate was very small – he believed in the hundreds. Relevant to this issue, Dr Wood provided no evidence specific to a SLSO or a Teacher Aide.
Dr Wood was asked as to why it was that arrangement had not been made for those few hundred teachers who had not been fully vaccinated by 8 November 2021 to continue to work remotely (as teachers had been doing for the previous 12 – 18 months). While Dr Wood again deferred to the Work Relations group within the Department, he reiterated that it was a requirement of the Department that all staff be fully vaccinated by 8 November 2021.
While Dr Wood confirmed there were opportunities for staff to work in other areas of work, such as curriculum development, it was his understanding that staff working in these other areas of work were also required to be fully vaccinated even if they were working remotely. Dr Wood was unable to provide explanation for such requirement. Dr Wood was not aware if the opportunity to work in such other areas of work had been offered to those teachers who were non-compliant with requirement to be fully vaccinated.
Dr Wood understood that as of May 2022 there was a change in approach by the Department to staff who were not fully vaccinated, and he was aware of teachers being directed to work at schools even though they were not fully vaccinated. Because teachers were being required to return to work, Dr Wood understood that the threat of discipline and possible termination of employment as a result of non-compliance with requirement to be fully vaccinated did not have application after May 2022.
When asked to indicate in a general way the work streams that were commenced within the Department to react to and implement the requirements of the PHO, Dr Wood said:
“There were a number of work streams. Certainly one of the priority work streams was the establishment of the vaccination policy and the associated resources to support Principals and other employees manage this in the Department to in enact policy. There was an ITD technology work stream to establish the VAC system which was the Vaccination Attestation and Confirmation system to enable. There was certainly a work stream within our legal department, obviously who were responsible for interpretation of the Department of Health and other legal matters. There was a work stream around medical contraindication in our work - what was, at the time, our work safety and health and employee well-being area. There was a work stream on the employee performance and disciplinary conduct process. So there was a number of significant work streams across the Department…”

Dr Wood said it was his understanding, in a general way, that when students returned to learning, they had in class instruction.

Incident report form

An incident report form relevant to Ms White was entered on 6 October 2021[5]. The date of the incident is noted to be 1 October 2021.
[5] ARD at page 87.
The description of the reported incident is described:
“Employee reports welfare concerns as a result of mandatory requirements put in place in order to return to school grounds. Supports are in place. School is managing the matter. Employee will seek medical treatment. Executive staff are aware.”
The description of injury is described:
“The school learning support officer (Carol) advises that she is receiving constant emails from the department in regard to mandatory vaccinations and phone calls from her principal asking her verbally over the phone what her intention is on being vaccinated by the 30/10/2021.
She is feeling very pressured and stressed over this mandatory guideline.
She loves her job, and it is causing her depression and anxiety as a result of being told she will be let go after the 25/10/21 if she is not vaccinated.
Her sleep is broken, and she struggles to seep, she feels her personal life is also affected.
She has spoken to her doctor in regard to this and they have placed her on medication.
She feels as if she is being cohorts and harassed into making a personal medical decision.
She has expressed feelings of self-harm but has advised she is ok and does not want to do that as she has kids and family, she has an appointment with her doctor on Wednesday the 06/10/21 in regard to a mental health care plan.
She is aware of the employee assistance program.
She also feels as if until late October when the rules come into place that she will feel judged when she returned to work next week by those who have been vaccinated.
Executive staff will be notified.
Employee is fine for principal to receive this notification as the pressure is from the department and the principal is only doing their job in enforcing the rules.
Employee wishes to claim workers compensation for the medical treatment and may change to lost time dependent on what the doctor says.”

Treating medical evidence

Ourimbah Surgery

Ms White has come under the general medical care of Dr Reid, who practices out of Ourimbah Surgery. Three certificates of capacity issued by Dr Reid relevant to Ms White are in evidence[6]. In the initial certificate of capacity dated 6 October 2021, Dr Reid noted the reported date of injury to be 27 August 2021 and provided diagnosis of injury:
“Increased anxiety and depression due to Department of Education and work site handling of Covid Vaccine requirements.”
[6] ARD at page 29,32 and 35.
Dr Reid confirmed Ms White first sought treatment for this particularised psychological injury on 6 October 2021. Dr Reid confirmed opinion Ms White’s psychological injury was consistent with Ms White’s “description of cause” with explanation:
“Emails from DoE and interviews with School Head requesting her to be vaccinated prior to returning to on site work escalated her Covid vaccine fears and exacerbated her depression and anxiety.”
Dr Reid provided certification on this occasion that Ms White had no current capacity for work, with such certification being provided in further certificates of capacity dated
19 October 2021 and 2 November 2021. In a Medical Certificate dated 23 November 2021[7], Dr Reid certified Ms White would be receiving “medical treatment” between
[7] ARD at page 40.
23 November 2021 and 18 January 2022 and would be “unfit to perform her usual duties”.
Dr Reid’s response to a questionnaire dated 22 November 2021 is also in evidence[8]. In response to specific questioning Dr Reid confirmed Ms White has a history of anxiety and depression, which was first noted at the medical practice in 2013. Dr Reid described
Ms White’s pre-existing psychological condition as “usually well controlled by Aropax”. Relevant to Ms White’s alleged psychological injury the subject of these proceedings,
Dr Reid confirmed the DASS questionnaire relevant to Ms White demonstrated “she had severe stress, anxiety and depression” and provided the history:
“Carol told of how her worksite had poorly handled her wishes not to be vaccinated, including reported statements of manipulation and bullying.”
[8] Reply at page 162.
Dr Reid said of workplace issues that may be affecting Ms White:
“Mandatory vaccines required,
possible bullying by heads of staff,
prob poor handling of those who wish not to be vaccinated.”
Dr Reid said of Ms White’s symptoms
“Teary, unable to sleep, heightened anxiety and depression, sense of loss and injustice.”
Dr Reid provided opinion as to Ms White’s capacity for work:
“I feel that Carol will be fit to return to work in the next few weeks at limited capacity but will not be accepted back to the worksite due to not being vaccinated.
…
Able to work part-time, but this will be dependent on mandatory vaccine issues. Part-time from mid December 2021.”
Dr Reid said in response to questioning as to whether she was confident Ms White will be able to return to her pre-injury duties:
“Only if the vaccine mandate is removed or Carol gets a vaccine or Covid infection.”
Relevant to Ms White’s prognosis, Dr Reid said:
“Uncertain. Those refusing vaccinations are difficult to assess due to their vaccine fears and anxiety.”

Newpsych psychologists

While Ms White has also come under the psychological care of Aimee Norrish who practices out of Newpsych psychologists, no clinical records of reports of Ms Norris relevant to
Ms White are in evidence. It is evident Ms White consulted with Ms Norrish on
5 November 2021 and 3 December 2021 as part of a Mental Health Care Plan prepared by Dr Reid.

Independent medical evidence

Dr Nagesh

Ms White was psychiatrically assessed by Dr Nagesh in his capacity as independent medical examiner. Dr Nagesh provided a report dated 20 December 2021 following his assessment of Ms White on 15 December 2021[9]. Dr Nagesh relevantly provided a history of injury:
“… Carol White alleged that in February 2021, she was caring for a disabled student, who passed away in August 2021. The loss of this child affected Carol badly. She became depressed and anxious around this time and had three counselling sessions, but she states that she started to feel better. She felt she could move on and then came the vaccination mandate from the government.
When the COVID-19 vaccination mandate came, Carol alleges she was not allowed to work onsite, she was sent home because of her vaccination status. She alleges that she received repeated emails from multiple staff members and the principal about her vaccination status the request from the department for her to get vaccinated made her anxious and depressed as alleged by her.
…
Carol feels that she was discriminated because of her vaccination status and was made to go off work.
…
She alleges her principal has been difficult and has not been supportive. Carol alleges the principal was not approving her leave and the principal was getting personal. She alleged that the principal was not professional in his behaviour when dealing with the mandatory COVID vaccination.”
[9] Reply at page 166.
Dr Nagesh noted Ms White consulted with both her general practitioner (GP) and a psychologist. Dr Nagesh noted too Ms White had a past history of psychological injury some 20 years ago with “another episode four or five years ago”.
Following mental state examination Dr Nagesh provided diagnosis and opinion in the following terms:
“Carol White, in the context of losing a student whom she cared for, has suffered from the following symptoms which include depressed mood, anxiety, insomnia, lack of appetite and lack of energy from which she states she recovered. Subsequent to that when the COVID vaccine was mandated, she alleged that she was coerced to have the COVID vaccine, and she had to leave work because of the mandatory COVID vaccine policy.
She alleges that the behaviour of the principal and other staff members was threatening, intimidating and bullying in nature while mandating the COVID vaccine policy. In this context, she alleges to have developed the following symptoms which include depressed mood, feeling anxious, not able to sleep, feeling tired, having no motivation and lack of appetite.
Since the alleged injury, she has received treatment from her GP and psychologist, with which there has been improvement in her symptoms. Reading through her principal’s statement who has refuted the claim of Carol White of bullying and harassment. In my opinion the claimant has not recovered completely from the loss of her student whom she was closely caring and the COVID vaccine mandate made her condition worse. The claimant has perceived the mandated COVID vaccine policy as being bullied and harassed. Because of her alleged symptoms I am of the opinion she has suffered from an episode of adjustment disorder with depressed and anxious mood.”
In response to specific questioning as to whether Ms White sustained a psychological injury arising out of or in the course of her employment Dr Nagesh said:
“Yes, Ms White sustained a psychological injury arising out of or in the course of her employment. My rationale for this is the mandatory COVID vaccine has been perceived by the claimant as being bullied and harassed. The claimant alleges that the behaviour of the principal towards her was one of intimidating and bullying in nature, which the principal has denied.”
In response to specific questioning as to whether Ms White’s employment was a substantial contributing factor to injury, Dr Nagesh said:
“Yes, as alleged by Ms Carol White. Ms White has alleged the behaviour of staff and principal to be rude towards her during the mandate COVID 19 policy. She alleges being treated inappropriately because of her reluctance to have the vaccine.”
In response to specific questioning as to whether Ms White’s employment was the main contributing factor to an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition, Dr Nagesh said:
“Yes, Ms White was already depressed by the loss of the child whom she was caring. The mandatory COVID vaccination has resulted in exacerbation of her symptoms.”
In response to specific questioning as to whether the whole or predominant cause of
Ms White’s psychological injury was reasonable action taken and proposed to be taken by the employer with respect to discipline, transfer, dismissal or provision of employment benefits insofar as it related to the implementation of the COVID-19 vaccine mandate for NSW education staff, Dr Nagesh simply said “yes”.
As at time of assessment Dr Nagesh considered Ms White could return to pre-injury duties if not for the mandated COVID-19 vaccine policy. He considered Ms White had capacity to participate in a return to work program.

Dr Rastogi

Ms White was psychiatrically independently assessed by Dr Rastogi in her capacity as independent medical examiner. Dr Rastogi provided a report dated 23 December 2021 following her assessment of Ms White the same day[10]. Dr Rastogi provided a history of
Ms White having not worked with the Department since 5 October 2021 and provided a history of injury:
[10] ARD at page 2.
“She stated that on 7 August 2021, one of the disabled students whom she has been teaching passed away. She reported poor sleep, irritability, anxiety, emotional dysregulation and had intrusive racing thoughts and sadness. She received three counselling session with EAP and felt much better but remained vulnerable. She continued teaching and performing her duties. She is on Aropax 20mg at this stage. She was working on site at the time when the mandate was presented.
She stated that public order mandate requirements for vaccination were made on
26 August 2021, (Mandate information enclosed in documentation). The announcement was made for enforcing vaccine mandate for school teachers and stated the emails from the Department of Education and from the principal were very intense and on a daily basis.
There were daily emails seeking updates on vaccination mandate and very short time frames with threats that staff would not be allowed on site if they had not been vaccinated. This was followed by change of timelines to return back to school shifting it earlier and the demand that vaccination should be completed earlier by
18th October 2021 otherwise the staff would not be allowed to return to school under any circumstances.
She was still researching the effect of vaccine and was trying to seek further information about effect vaccine on her well-being. She wanted to make sure it was the right one and she did not react given the constant mixed messages from media and there was limited information and evidence about efficacy and the side effects of vaccination.
She attended the meeting with the principal on 27 September 2021 asking what her intention was about vaccination. Ms White stated that she was still seeking information about vaccine and effects. The conversation got very personal with her principal and she perceived that the principal made personal comments and judged and ostracised her causing breach of her privacy. She was very distraught after the phone call.
She resumed working on term four at site till 5th October 2021 and she was called for a sudden meeting with principal without any notice. The meeting was conducted with principal and administration officer taking notes. Ms White was not offered a support person. The principal advised her in the meeting that she had received a directive from the Department to leave the site immediately and the principal’s words were that other staff would be distressed having an unvaccinated member on site. Ms White was very distraught and felt discriminated. She requested the principal to give her in writing that Department had sent a directive however the principal in her email stated that she was directed to go home due to having limited staff members on site and no mention of directive and sent her link about vaccination guidelines.
She commenced teaching from home the next day. She consulted her GP who initiated workers compensation … She remains unfit to work in any capacity.”
Dr Rastogi described Ms White as consulting with her psychologist on a weekly basis and remaining medicated with Aropax and Seroquel for psychological injury. Dr Rastogi reported a previous history of psychological injury some 20 years ago resulting from Ms White being a victim in an armed robbery. Dr Rastogi described Ms White as having received three years of counselling and having made “good progress with remission of her symptoms.” Dr Rastogi noted Ms White’s psychological injury as having been maintained by Aropax “due to relapse of depression in context of three students who died due to unforeseen circumstances and she made full recovery.”
Following mental state examination Dr Rastogi provided diagnosis and opinion in the following terms:
“Adjustment disorder with anxious distress.
She was a high functioning person who took pride in her job and her self-worth and self-esteem was enmeshed with her job.
She developed heightened anxiety with an adjustment disorder following coercive emails to receive vaccination with mandate enforced that she was concerned. She had limited information on vaccination and has ongoing reservations due to fears and beliefs. She feels discriminated, ostracised and under duress to receive vaccination and stated her integrity has been questioned with job threatened. She feels distraught by allegations of misconduct and her reputation being tarnished.
This impacted her capacity to work, and the adjustment disorder has caused significant memory deficit, loss of confidence in ruminations. Her depression and anxiety are maintained by vocational uncertainty, betrayal and being treated unfairly causing significant losses. This is challenging her ability to function as a teacher with fractured relationship and feeling isolated.”
In response to specific questioning, Dr Rastogi said:
“Her anxiety first manifested with anxious ruminations, palpitations and associated with adjustment disorder with amotivation, excessive fears, hopelessness, and loss of confidence with poor self-worth impacting her social and vocational functioning after being advised by her employer’s response to COVID pandemic as well as being ostracised with allegations of misconduct with feeling alienated, disrespected and reputation being tarnished.
…
In absence of any other non-work stressors, her employment is the main contributing factor to the injury sustained and/or diagnosis. The reasons being constant coercion and discrimination to receive vaccination as a mandatory requirement and possible threat to her employment with no support provided and misconduct allegations. She felt punished and discriminated whilst she was still contemplating vaccination due to fear about side effects and felt the undue pressures and coercion magnified her anxiety and distress leading to anxiety disorder and panic attacks.
…
Her condition was not wholly or predominantly caused by action taken by her employer in respect to promotion, appraisal, discipline, and dismissal.
…
She is incapacitated totally currently and remains unfit to work given her current mental state. This is due to anxiety with avoidance behaviours as well as un-resolved grievances. She presents with memory deficits, amotivation and poor drive, excessive fears, loss of confidence, avoidance behaviours, social scrutiny sense and anxious ruminations impacting her ability to function and multitask. She is concerned about return to work and ambivalence and ability to work in preinjury capacity given her anxiety and memory deficits and poor support with alienation. She is struggling with decision-making, loss of control and fearful of a future. There are issues of trust and still processing the negative experiences she faced at work and fear of social scrutiny. She remains unfit to work currently as she remains vulnerable and grievances need to be addressed.”

Submissions

Ms Roberts and Mr Dodds provided oral submissions during the arbitration hearing.
Ms Roberts and Mr Dodds also subsequently provided written submissions on the evidence of Dr Wood in Matter No W1987/22 (being evidence admitted in these proceedings) together with legal argument that was the subject of written submissions in Matter No W1987/22. I have carefully considered counsels’ submissions and I am grateful to counsel for the assistance they have afforded me in this particular matter.

DETERMINATION
Injury

It is disputed Ms White sustained primary psychological injury arising out of or in the course of her employment with the Department on 7 August 2021 and between 27 August 2021 and 8 November 2021.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury where the worker’s employment is the main contributing factor to injury. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[11] with comment that the test of “main contributing factor” is one of causation that involves consideration of the evidence overall.
[11] [2020] NSWWCCPD 9.
Relevant to the issue of causation, in Kooragang v Cement Pty Ltd v Bates[12] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[12] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).

In submission, the Department has drawn my attention to Wilkinson v State of New South Wales[13] and urged that considerations focus on actions that were causative of injury.
[13] [2020] NSWWCCPD 52.
Relevant too when considering the issue of establishing psychological injury in circumstances of a worker’s perception of real events occurring at work, is that in Attorney General’s Department v K[14] Deputy President Roche usefully summarised the principles to be applied at [52]:
[14] [2010] NSWWCCPD 76.
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40];
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (Leigh Sheridan v Q-Comp [2009] QIC 12);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 at [31], and
(f)     it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
And said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’ …”
The Department has placed injury in issue and Ms White has the onus of proving she sustained psychological injury arising out of or during the course of her employment with the Department and that her employment with the Department was the main contributing factor to such injury. This is a question of fact and consideration of the factual evidence and medical evidence is required. In submission, the Department has drawn my attention to the matters of Usher v Coffs Harbour City Council[15] and Wilkinson v State of New South Wales[16] and I note that in Nguyen v Cosmopolitan Homes (NSW) Limited[17] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[15] [2021] NSWPIC 196.
[16] [2020] NSWWCCPD 52.
[17] [2008] NSWCA 246 (Nguyen).
Ms White alleges in part that she sustained psychological injury on 7 August 2021 arising out of or in the course of her employment with the Department when a disabled student who she taught passed away.
The only mention Ms White makes in her statement of the passing of her student is in the context of her telephone conversation with Ms Lennard on 27 September 2021. Ms White said:
“…Donna brought up a student who I had worked closely with and who sadly passed away in August and asked me if the student was ‘still here’ would my decision on vaccination be different. I told her that I could not answer that as it was hypothetical question and she had known how much the passing of the student affected me so perhaps should not have asked that personal question.”
While Ms Lennard has said in her letter dated 4 November 2021 that she had a telephone conversation with Ms White on 27 September 2021, Ms Lennard makes no mention of this reported aspect of their conversation.
While the medical information provided by Ourimbah Surgery confirms Ms White has a history of psychological injury, which was first noted by the medical practice in 2013, there appears to be no mention made by Dr Reid, under whose general medical care Ms White has come, of Ms White seeking medical treatment for any mental fragility connected with the passing of her student.
However, in his independent medical examiner’s report dated 20 December 2021,
Dr Nagesh provided a history of Ms White having been affected badly by the passing of her student in August 2021. Dr Nagesh reported the student had been under Ms White’s care since February 2021. Dr Nagesh described Ms White as becoming depressed and anxious, attending three counselling sessions and feeling better. Dr Nagesh reported: “She felt she could move on and then came the vaccination mandate from the government”. While following mental state examination Dr Nagesh relevantly said of Ms White
“… in the context of losing a student whom she cared for, has suffered from the following symptoms which included depressed mood, anxiety, insomnia, lack of appetite and lack of energy from which she states she has recovered…”
Dr Nagesh formed the view Ms White had not recovered completely from the passing of her student and the mandate that she be required to be fully vaccinated made her psychological condition worse.
Likewise, in her independent medical examiner’s report dated a few days later,
23 December 2021, Dr Rastogi provided a history of Ms White having suffered “poor sleep, irritability, anxiety, emotional dysregulation and had intrusive thoughts and sadness” with the passing of her student on 7 August 2021. Dr Rastogi also described Ms White as having three counselling sessions through an Employee Assistance Program (EAP). Dr Rastogi reported that although Ms White had “felt much better” she remained vulnerable and noted she was taking Aropax.
Following a review of the evidence as a whole and careful consideration of counsels’ submissions, with particular reference to Ms White’s comment about how much the passing of her student on 7 August 2021 had affected her, and the histories taken and the opinions provided by both Dr Nagesh and Dr Rastogi, I accept Ms White sustained psychological injury arising out of or in the course of her employment with the Department with the passing of her student on 7 August 2021 and that her employment with the Department was the main contributing factor to injury. Both Dr Nagesh and Dr Rastogi have referred to Ms White suffering symptoms consistent with an anxiety disorder following the passing of her student on 7 August 2021 and Dr Nagesh provided opinion Ms White became depressed following the passing of her student.
Ms White alleges too that she sustained psychological injury between 27 August 2021 and
8 November 2021 arising out of or in the course of her employment with the Department due to the mandate that she be required to be fully vaccinated. In her statement Ms White canvassed the initial email she received on 27 August 2021 from Ms Harrison regarding requirement that she be fully vaccinated by 8 November 2021, the reminder email she received on 2 September 2021, and the further reminder email she received on 17 September 2021. Ms White canvassed her telephone conversation with Ms Lennard on 27 September 2021 during which Ms White’s vaccination intentions were canvassed and during which reference was made by Ms Lennard to Ms White’s student who had passed on 7 August 2021. Ms White canvassed too the onsite meeting she attended with Ms Lennard and the administration manager on 5 October 2021, during which she was directed to work from home because she had not been vaccinated. Ms White said that she was upset by this meeting. Ms White said she felt she had been treated poorly and that she had been subjected to discrimination.
There is no signed statement from Ms Lennard in evidence in these proceedings. However, in her letter dated 4 November 2021, which I note has no handwritten signature of Ms Lennard, Ms Lennard accepted she had telephoned Ms White on 27 September 2021 to discuss with Ms White the mandatory requirement for vaccination and Ms White’s vaccination intention “so that decisions could be made around staffing rostering and advice by the Department in terms of employee vaccination status”. While Ms Lennard made mention Ms White was onsite on 5 October 2021, she made no mention of any meeting with Ms White that day, save to note:
“She was going to be ‘Working from Home’. However, she then submitted application for leave and the workers Compensation Certificate of Capacity.”
The incident report form entered on 6 October 2021, being the day after Mr White was onsite on 5 October 2021, canvassed Ms White’s concerns about the mandate that she be required to be double vaccinated and made note “School is managing the matter”. The report form noted Ms White had received emails from the Department regarding the mandate and telephone calls from Ms Lennard with enquiry as to her vaccination intention. The report form described Ms White as suffering “depression and anxiety as a result of being told she will be let go after the 25/10/21 if she is not vaccinated”. The report form noted Ms White had sought medical assistance and had been prescribed medication.
In the Certificates of Capacity issued by Dr Reid, the first of which is also dated
6 October 2021, Dr Reid provided diagnosis in terms of “increased anxiety and depression due to Department of Education and work site handling of Covid Vaccine requirements” and confirmed Ms White’s psychological injury was consistent with her description as to the circumstances of injury with explanation:
“emails from DofE and interviews with School Head requesting her to be vaccinated prior to returning to work site escalated her Covid vaccine fears and exacerbated her depression and anxiety.”
In response to a questionnaire dated some weeks later, 22 November 2021, Dr Reid confirmed that the DASS questionnaire relevant to Ms White demonstrated she suffered severe stress, anxiety and depression against a background of Ms White reporting “her worksite had poorly handled her wishes not to be vaccinated, including reported statements of manipulation and bullying”.
In his report Dr Nagesh recorded a history of Ms White being sent home from the school where she worked because she was not fully vaccinated as required by the mandatory requirement for vaccination. Dr Nagesh reported Ms White had “received repeated emails from multiple staff members and the principal about her vaccination status”. Dr Nagesh said of Ms White:
“The request from the department for her to get vaccinated made her anxious and depressed as alleged by her.
…
Carol feels that she was discriminated because of her vaccination status and was made to go off work.
…
She alleges her principal has been difficult and has not been supportive. Carol alleges the principal was not approving her leave and the principal was getting personal. She alleged the principal was not professional in her behaviour when dealing with the mandatory COVID vaccination.”
Dr Nagesh provided opinion Ms White sustained psychological injury “arising out of or in the course of her employment” with the Department, with explanation:
“The mandatory COVID vaccine has been perceived by the claimant as being bullied and harassed. The claimant alleges that the behaviour of the principal towards her was one of intimidating and bullying in nature, which the principal has denied.”
Dr Nagesh also relevantly provided opinion Ms White’s employment with the Department was the main contributing factor to injury in that he said:
“Yes, Ms White was already depressed by the loss of the child for whom she was caring. The mandatory COVID vaccination has resulted in exacerbation of her symptoms.”
In her report, Dr Rastogi likewise recorded a history of Ms White receiving emails from the Department and also from the principal regarding the mandate to be fully vaccinated. Dr Rastogi reported:
“She was still researching the effect of vaccine and was trying to seek further information about the effect vaccine on her well-being. She wanted to make sure it was the right one and she did not react given the constant mixed messages from media and there was limited information and evidence about efficacy and the side effects of vaccination.”
Dr Rastogi noted Ms White’s telephone discussions with Ms Lennard on 27 September 2021 during which Ms Lennard sought Ms White’s intention regarding vaccination, with Ms White reporting the discussion had gotten “very personal”. Dr Rastogi reported Ms White had been very distraught after this telephone conversation. Dr Rastogi also noted Ms White’s onsite meeting with Ms Lennard and the administration manager on 5 October 2021 during which Ms White was directed to work from home because she had not been vaccinated. Dr Rastogi described Ms White as being distraught by this meeting. She said Ms White felt she had been subjected to discrimination. Dr Rastogi provided opinion Ms White sustained psychological injury arising out of or in the course of her employment with the Department with explanation:
“She developed heightened anxiety with adjustment disorder following coercive emails to receive vaccination with mandate enforced that she was concerned. She had limited information on vaccination, and she has ongoing reservations due to fears and beliefs. She feels discriminated, ostracised and under duress to receive vaccination and stated her integrity has been questioned with job threatened. She feels distraught by allegations of misconduct and her reputation being tarnished.”
Dr Rastogi also relevantly provided opinion Ms White’s employment with the Department was the main contributing factor to injury in that she said:
“In absence of any other non-work stressors, her employment is the main contributing factor to the injury she sustained.”
Dr Rastogi explained:
“The reasons being constant coercion and discrimination to receive vaccination as a mandatory requirement and possible threat to her employment with no support provided and misconduct allegations. She felt punished and discriminated whilst she was still contemplating vaccination due to fear about side effects and felt under undue pressures and coercion magnified her anxiety and distress leading to anxiety disorder and panic attacks.”
Following a review of the evidence as a whole and careful consideration of counsels’ submissions, with particular reference to Ms White’s comments regarding the emails she had received about the mandatory vaccination requirement either by 8 November 2021 or 25 October 2021, her rather distressing telephone discussions with Ms Lennard on 27 September 2021 relevant to her unvaccinated status and the effect this would have on her ongoing employment with the Department, her onsite attendance at work on 5 October 2021, which resulted in an unscheduled meeting with Ms Lennard and the administration manager during which she was directed to return home and not return onsite pending further instructions from the Department, her subsequent consultation with Dr Reid the next day, Dr Reid’s opinion the workplace issues that may be affecting Ms White were in terms of “mandatory vaccines required, possible bullying by heads of staff, prob poor handling of these who wish not to be vaccinated”, Dr Nagesh’s opinion that Ms White’s pre-existing psychological injury was aggravated by the mandatory vaccination requirement and the manner in which it was being implemented by Ms Lennard in her particular case, and Dr Rastogi’s like opinion that Ms White suffered psychological injury as a result of the mandatory vaccination requirement and the manner in which it was being implemented by Ms Lennard, I accept Ms White sustained psychological injury arising out of or in the course of her employment with the Department and that her employment with the Department was the main contributing factor to injury. The relevant dates of injury are 7 August 2021 and between 27 August 2021 and 8 November 2021.
While Ms Roberts has drawn my attention to a finding of Member Wynyard in Bjekic v State of New South Wales (Western Sydney Area Local Health District[18] that the “substantial cause of Mr Bjekic’s condition was not his employment, but NSW health orders which changed the condition of his employment where the employer was unable to waive compliance therewith”, I do not accept Ms White’s circumstances of injury are “particularly analogous” to those of
[18] NSWPIC 214.
Mr Bjekic. As Mr Dodds correctly pointed out, Mr Bjekic was a security officer at a hospital who was subjected to the Public Health Order regarding mandatory requirement to wear a face mask, whereas Ms White is a teacher’s aide who was subjected to the PHO regarding requirement to be fully vaccinated in order to return onsite.
Relevant then to the issue in dispute as to whether Ms White sustained psychological injury arising out of or in the course of her employment with the Department, with her employment with the Department being the main contributing factor, I accept Ms White as a credible witness and I accept she has discharged the onus of proof required of her.

Defence raised under s 11A of the 1987 Act

While I have determined Ms White sustained psychological injury arising out of or in the course of her employment with the Department and that her employment with the Department is the main contributing factor to injury, the Department has raised defence under s 11A(1) of the 1987 Act. The Department argues Ms White’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the Department with respect to discipline, dismissal and/or provision of employment benefits to workers, and in submission the Department conceded “discipline” to be the most clearly engaged item in s 11A, followed by “dismissal”.
In essence, the Department says in the event it is accepted Ms White sustained psychological injury arising out of or in the course of her employment with the Department with her employment being the main contributing factor to injury (which I do), Ms White has no entitlement to compensation payable under the 1987 Act as the injury she sustained is wholly or predominantly caused by reasonable action taken or proposed to be taken by the Department with respect to discipline and/or dismissal.
The Department has the onus of establishing the defence raised under s 11A(1) of the 1987 Act (Pirie v Franklins Ltd[19] and Department of Education and Training v Sinclair[20]) and there are two aspects to the defence raised by the Department.
[19] [2001] NSWCC 167; (2001) 22 NSWCCR 346.
[20] [2005] NWCA 465 (Sinclair).
Firstly, Ms White’s injury must be “wholly or predominantly caused” by the Department’s actions regarding one of the categories referred to in s 11A(1) of the 1987 Act and in Ms White’s case, the Department essentially relies on discipline and/or dismissal. Principles regarding the wholly or predominately caused aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[21] with comment made that medical evidence is required to determine this causation issue. It is also accepted “wholly” and “predominately” are different concepts[22] and the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Kooragang,Ponnan v George Weston Foods Ltd[23] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.[24]
[21] [2017] NSWWCCPD 6.
[22] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[23] [2007] NSWWCCPD 92.
[24] [2008 NSWWCCPD 96.

Secondly, if the Department successfully establishes Ms White’s psychological injury was wholly or predominately caused by the Department’s actions regarding discipline and/or dismissal, then the Department is required to establish the Department’s actions were “reasonable”.
Looking first at whether the psychological injury sustained by Ms White was wholly or predominantly caused by actions taken or proposed to be taken by the Department with respect to discipline and/or dismissal, it is important to remember an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[25] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011 and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[25] [2013] NSWWCCPD 64.
In more recent times, in ACR v Graceworld[26] Deputy President Wood noted:
“The cause can be multifactorial, and a predominant cause can consist of numerous events under the umbrella of one of the actions described in s 11A(1) of the 1987 Act.”
[26] [2021] NSWPICPD 44.
Relevant to the PHO that made it plain that “relevant work” (defined to be “work at a government school or non-government school”) could not be carried out by a person who was not fully vaccinated by 8 November 2021 unless that person had a medical contraindication certificate, the Department referred me to Kassam v Hazzard[27] and noted the mandate did not require any person to receive the vaccine against their will. The Department also referred me to Christina Shah v Catholic Education Office Paramatta Diocese (Cedp)[28] and noted that alternative measures for determining whether a person had contracted COVID-19, such as regular testing, would not result in compliance with the PHO.
[27] (2021) 396 ALR 302; [2021] NSWCA 299.
[28] [2022] FWC 433.
Ms White has canvassed the emails she received from the Department on 27 August 2021,
2 September 2021 and 17 September 2021 relevant to mandatory vaccination requirement. She has also canvassed her telephone conversation with Ms Lennard on 27 September 2021 and her distressing meeting with Ms Lennard on 5 October 2021 when she returned to onsite work in accordance with the roster that had been forwarded to her by Ms Lennard. While Ms Lennard provided opinion that neither the emails Ms White had received from the Department or her telephone conversation with Ms White “caused an injury” she is of course not a medical practitioner able to provide such opinion and I think it is of some significance that Ms Lennard fails in her letter dated 4 November 2021 to address her meeting with Ms White and the administration manager on 5 October 2021. In the incident report entered the day after Ms White’s meeting with Ms Lennard and the administration manager, Ms White’s concerns regarding the mandatory vaccination requirement to enable her to work onsite are noted, as is the fact that the school is “managing the matter”. Dr Reid provided opinion as early as 6 October 2021 that the emails Ms White had received from the Department and her interactions with Ms Lennard, all of which were relevant to the mandatory vaccination requirement, both escalated Ms White’s fears about the vaccination itself and exacerbated her “depression and anxiety”. The following month Dr Reid confirmed his previously expressed opinion with comment:
(a)     Ms White became “anxious and depressed” with the repeated communications requesting her to “get vaccinated” and enquiry about her vaccination status;
(b)     Ms White felt she suffered discrimination because of her vaccination status, which caused her to be unable to work, and
(c)     Ms White felt Ms Lennard “has been difficult and has not been supportive”.
Dr Nagesh likewise was of the opinion the requirement for Ms White to be fully vaccinated and Ms Lennard’s behaviour towards Ms White relevant to this mandatory requirement resulted in Ms White sustaining psychological injury. Dr Rastogi was also of the opinion the “constant” requirement for Ms White to be fully vaccinated coupled with possible threat to her ongoing employment with the Department and Ms White’s feeling that she was being “punished and discriminated while she was still contemplating vaccination due to fear about side effects” resulted in Ms White sustaining psychological injury. Although Dr Rastogi provided opinion Ms White’s psychological injury was not wholly or predominantly caused by action taken by the Department with respect to “discipline and dismissal” she unfortunately provides no reasoning for such opinion.
While it is evident Ms White received three counselling sessions following the passing of her student on 7 August 2021, in circumstances where Ms White consulted with Dr Reid the day after her meeting with Ms Lennard and the administration manager on 5 October 2021 during which she was directed to go home and not return onsite pending further direction from the Department, I accept the primary psychological injury Ms White has sustained arising out of or in the course of her employment with the Department, with her employment being the main contributing factor to injury, was predominantly caused the very unfortunate situation Ms White found herself in due to her vaccination status at the time she returned on site on 5 October 2021, and I accept Ms White’s injury was wholly or predominantly caused by action taken by or on behalf of the Department with respect to discipline and/or dismissal.
As I accept Ms White’s injury was wholly or predominantly caused by action taken by the Department with respect to discipline and/or dismissal, the Department is required to establish the Department’s action or proposed action to be taken with respect to discipline and/or dismissal was “reasonable”.
Considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd;[29] Melder v Ausbowl Pty Ltd)[30] and in Irwin Geraghty J said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[29] [1998] NSWCCR 13.
[30] [1997] NSWCCR 454.
In Northern New South Wales Local Health Network v Heggie[31] Sackville AJA usefully set out the following statements of principle regarding s 11A(1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[31] [2013] NSWCA 225; 12 DDCR 95.
In the context of discipline the Department has drawn my attention to a finding of Member Sweeney in Van Vliet v Landscape Enterprises Pty Ltd [32] that “reasonableness does not require the employer’s actions in respect of discipline to be flawless”, being a concept I have no quibble with.
[32] [2021] NSWPIC 14.
In her statement Ms White described the emails she received from the Department on
27 August 2021, 2 September 2021 and 17 September 2021 relevant to mandatory requirement she be fully vaccinated. Ms White described her telephone conversation with Ms Lennard on 27 September 2021 in which her vaccination intentions were canvassed with confirmation that her employment with the Department would be terminated if she remained noncompliant with the mandatory requirement to be fully vaccinated. Ms White described her “surprise” meeting with Ms Leonard and the administration manager on 5 October 2021, which resulted in her being directed to return home and work from home pending receipt of further instructions from the Department.
The evidence provided by Dr Wood relevant to the action taken by the Department relevant to the PHO is critical in this matter and I have carefully reviewed both his statement (which is in evidence in these proceedings) and the transcript of the cross-examination of Dr Woods in Davis. Dr Wood accepted the emails forwarded to “all school based staff” (which included Ms White) were “blanket” emails. Dr Wood also accepted these blanket emails provided for no special provision for staff who failed to comply with the Guidelines issued by the Department relevant to the PHO, non-compliance with the Guidelines could result in NSW Police intervention (with possible infringement notice or criminal charge), and investigation and disciplinary action by the Department (including termination of employment). Dr Wood confirmed that during August 2021 and September 2021 non-compliance with the Guidelines had resulted in the application of disciplinary procedure by the Department. Dr Wood also confirmed that in the event staff employment was terminated as a result of disciplinary procedure by the Department, such record would remain on an affected staff’s record of employment with the Department. While Dr Wood confirmed that policy and procedures were put in place by the Department to support schools, he acknowledged such policy and procedures were revised as circumstances changed. Dr Wood also confirmed such policy and procedures were not necessarily provided with “end dates.” Dr Wood was unable to offer explanation as to why it was that staff who worked remotely were required to comply with the Guidelines and Dr Wood was unable to provide comment as to why it was that those staff who were non-compliant with the Guidelines were not provided with the opportunity to work remotely, despite having worked remotely over the last 12 – 18 months.
100.In submission Ms White said a Jones v Dunkel inference should be drawn relevant to the failure of the Department to adduce evidence from Mr Currie (in his capacity as the key Executive Director keenly involved in “discipline”) as to why the disciplinary/dismissal matters with which Ms White was “threatened” were put in place, and I believe it reasonable to draw such an inference. I am of the view the warning in the Guidelines that non-compliance could result in NSW Police intervention (with possible infringement notice or criminal charge) and investigation and disciplinary action by the Department (including termination of employment) is conduct that requires explanation and it might reasonably be expected that Mr Currie provide evidence regarding such conduct. I am certainly in agreement with comment by Member Bachelor in Diane Dawking v Department of Education[33] that, on the face of it, the Department’s threat of notifying NSW Police if staff were found to be, or suspected of being, in breach of the PHO and the Department’s threat of disciplinary action, which included termination of employment “does appear somewhat draconian in the context of employees suddenly being faced with a situation of pandemic through no fault of their own, with serious consequences to their livelihood.”
[33] W3277/22 3 November 2022.
Although in submissions neither party drew my attention to the matter of Jeffery v Lintipal[34] (which I accept is a matter relevant to the “transfer” of a worker employed by an employer acting on direction of the Department rather than the “discipline and/or dismissal” of a worker employed by the Department), I consider to be instructive the reminder by Basten JA that where an employer finds itself in an invidious position because of a direction of a third party, the pertinent statutory test requires objective assessment by the Commission of the reasonableness of the action of the employer. Basten J said:
“If it were sufficient that the employer took action because it appeared to the employer, on the grounds upon which it was reasonable to rely, to be reasonable action, the legislation could have said so. However it did not. In my view, if, in the view of the Commission, the action taken by the employer in transferring an employee is not reasonable in all the circumstances, the employer cannot rely on s 11A because it held a genuine belief, based on reasonable grounds, that its action was reasonable.”
[34] [2008] NSWCA 138.
A purposive approach to the operation of s 11A of the 1987 Act in the circumstances of this particular matter therefore requires me to assess the reasonableness of the actions of the Department and/or Ms Lennard in her capacity as school principal with respect to the discipline and/or dismissal of Ms White in the context of her non-compliance with the Guidelines, such Guidelines having been issued by the Department in response to the PHO.
In the circumstances of this particular matter I do not consider the Department’s actions to be “reasonable” action. While it may be that certain steps taken by the Department with respect to the PHO may have been “reasonable” (particularly noting the Department issued an email to staff prior to the anticipated announcement by the Premier relevant to the PHO), of particular concern to me are Ms Lennard’s telephone interaction with Ms White on
27 September 2021 and her subsequent onsite interaction with Ms White on Ms White’s return to school on 5 October 2021 (which was reportedly in accordance with the roster forwarded to Ms White by Ms Lennard). Although I am mindful of the rather difficult position Ms Lennard found herself in regarding management of her school staff and their compliance with the Guidelines, relevant to her telephone interaction with Ms White on
27 September 2021, I do not think it is “reasonable” for Ms Lennard to have raised with
Ms White that Ms White’s attitude towards the mandatory vaccination requirement may have differed if her student who had passed only a matter of weeks earlier was still attending school and I do not think it is “reasonable” for Ms Lennard to have met with Ms White and the administration manager on 5 October 2021, being Ms White’s first day back onsite (which was in accordance with the roster forwarded to her by Ms Lennard) with the purpose of directing Ms White to return home and work from home pending further communication from the Department without prior warning of the meeting being given to Ms White.
In circumstances where Ms Lennard was acutely aware of Ms White’s mental fragility following the passing of her student on 7 August 2021 and Ms White’s mental fragility regarding the Department’s mandatory vaccination requirement, I am of the view that prior to any management meeting with Ms White regarding her vaccination status and consequences flowing from her vaccination status it was appropriate Ms White be provided with adequate notice of such meeting, be provided with the opportunity of a support person being in attendance at such meeting (particularly so as Ms Lennard was accompanied at the meeting by the administration manager), and Ms White be reminded of the availability of EAP support counselling at the meeting. It is not evident that any of these steps occurred in the circumstances of the management meeting Ms White attended on 5 October 2021.
In all of the circumstances known to Ms Lennard at the time of Ms White’s meeting with her and the administration manager on 5 October 2021, with particular reference to Ms White’s known distress with the passing of her student on 7 August 2021, Ms White’s previously expressed concerns regarding the mandatory vaccination requirement, the lack of adequate notice provided to Ms White of the meeting with Ms Lennard and the administration manager when she returned onsite on 5 October 2021, the lack of offer of a support person to attend the meeting, and the lack of reminder of EAP counselling consequent on the meeting with management, I do not accept the action taken by the Department with respect to discipline and/or dismissal resulting from Ms White’s non-compliance with the vaccination mandate was “reasonable”.
For the reasons discussed above I am not satisfied the Department has discharged the onus of proof required and the Department cannot rely on defence raised under s 11A of the 1987 Act.

Capacity

I have determined Ms White sustained psychological injury in the course of her employment with the Department, with Ms White’s employment with the Department being the main contributing factor to injury. As I have also determined the Department cannot rely on defence raised under s 11A of the 1987 Act, it follows Ms White may have an entitlement to weekly benefits payable under the 1987 Act.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
Sections 36 and 37 of the 1987 Act provides for weekly payments during an injured worker’s first and second entitlement period. The provisions of ss 36 and 37 of the 1987 Act require consideration as to whether an injured worker has “current work capacity” or “no current work capacity” as defined in cl 9 of Schedule 3 of the 1987 Act:
“An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Suitable employment is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
Assessment of Ms White’s capacity for work from 5 October 2021 involves consideration as to whether since that time Ms White has had a current work capacity or no current work capacity as defined in Schedule 3 of the 1987 Act. This requires consideration of Ms White’s capacity to undertake not only her pre-injury employment with the Department but also her capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing Home Pty Ltd v Dewar.[35] It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[35] [2014] NSWWCCPD 55 (Dewar).

In her statement dated 13 October 2021 Ms White said she had been totally incapacitated for work “as a result of the events arising out of, or during the course of her employment with my employer and from 27 August 2021 the feelings are increasing.” I assume reference to
27 August 2021 is reference to Ms White’s receipt of the first email from the Department relevant to the PHO.
Dr Reid has in effect provided Ms White with certification she had no current work capacity between 5 October 2021 and 2 November 2021 and certification that she was “unfit to perform her usual duties” between 23 November 2021 and 18 January 2022. Dr Reid provided opinion on or about 22 November 2021 that Ms White had a current capacity to work from “mid December 2021” on a part time basis. Dr Nagesh provided opinion on
15 December 2021 that Ms White had a current capacity to work in her pre-injury duties “if not for the mandated COVID vaccine policy”. Dr Rastogi provided opinion on
23 December 2021 that Ms White had no current capacity for work “as she remains vulnerable, and grievances need to be addressed”.
While in submission Ms White said she had no current work capacity from 5 October 2021 “until at least December 2021”, there was acceptance that in so far as Ms White’s further current work capacity thereafter was concerned “the evidence stops at that point” with submission the issue of further current work capacity would be addressed by parties following determination of “primary liability”.
While Dr Reid, under whose general medical care Ms White has come, provided opinion on 22 November 2021 that Ms White had current work capacity on a part time basis from about mid-December 2021, Dr Nagesh provided opinion on 20 December 2021 that
Ms White had a current capacity for her pre-injury duties and Dr Rastogi provided opinion on 23 December 2021 that Ms White had no current work capacity. I prefer the opinion of
Dr Rastogi to that of Dr Reid and that of Dr Nagesh as Dr Rastogi had the opportunity to assess on the most recent occasion, with Dr Nagesh having assessed Ms White on
15 December 2021 and Dr Reid having assessed Ms White on 22 November 2021. While I accept Ms White had no current work capacity between 5 October 2021 and 23 December 2021 when she was independently psychiatrically assessed by Dr Rastogi, noting in submission Ms White said that “the evidence stops at that point”, I make no determination as to Ms White’s current capacity for work after this time.

Quantification of entitlement to weekly compensation

Ms White’s PIAWE is agreed to be $822.21. Ms White’s PIAWE is subject to legislative indexation.
I am satisfied Ms White had no current capacity for work between 5 October 2021 and 23 December 2021 resulting from primary psychological injury arising out of or in the course of her employment with the Department, with her employment being the main contributing factor to injury. Accordingly Ms White has entitlement to weekly compensation payable pursuant to s 36(1) of the 1987 Act at the rate of $781.10 per week (subject to indexation).
In accordance with the submission made by Ms White I am not required to determine
Ms White’s entitlement to weekly compensation after 23 December 2021.

Treatment

It is not disputed Ms White requires medical and related treatment for the psychological injury she has sustained, and as I accept Ms White sustained psychological injury in the course of her employment with the Department with Ms White’s employment with the Department being the main contributing factor to injury, it follows Ms White has an entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act.

SUMMARY

Ms White sustained psychological injury arising out of or in the course of her employment with the Department on 7 August 2021, and between 27 August 2021 and 8 November 2021. Ms White’s employment with the Department was the main contributing factor to injury.
Ms White’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline, dismissal and/or provision of employment benefits to workers.
The Department is to pay Ms White weekly compensation (subject to indexation) between
5 October 2021 to 23 December 2021 at the rate of $781.10 per week pursuant to s 36(1) of the 1987 Act.
The Department is to pay Ms White’s medical and related treatment expenses pursuant to
s 60 of the 1987 Act.

[2023] NSWPIC 113

17 March 2023