Williams v Colin Joss & Co Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Williams v Colin Joss & Co Pty Ltd [2024] NSWPIC 344
APPLICANT:	Angela Williams
RESPONDENT:	Colin Joss & Co Pty Ltd
MEMBER:	Jacqueline Snell
DATE OF DECISION:	28 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly compensation and medical and related treatment expenses resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) with respect to discipline and/or dismissal; Held – 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 had no current capacity for work between 12 October 2021 and 12 October 2022 and has entitlement to weekly compensation payable under sections 36 and s 37; as the applicant requires medical and related treatment for her injury, the applicant has an entitlement to compensation payable under section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s primary psychological 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. 2. The applicant has had no current capacity for work between 12 October 2021 and 12 October 2022 resulting from her injury. The applicant’s pre-injury average weekly earnings are agreed to be $1,661.11. The applicant has entitlement to weekly benefits payable under the Workers Compensation Act 1987 as follows (with credit to the respondent for benefits paid to the applicant during the period 12 October 2021 and 12 October 2022): a. $1,578.05 payable under s 36 (1), and b. $1,328.89 payable under s 37(1) (to be indexed) 3. The applicant has entitlement to medical and related treatment expenses payable under s 60 of the Workers Compensation Act 1987, including the costs of consultations with her general practitioner particularised in the sum of $1,288.40.

STATEMENT OF REASONS

BACKGROUND

Angela Williams (Ms Williams), the applicant, alleges she sustained primary psychological injury in the course of her employment with Colin Joss & Co Pty Ltd (Joss), the respondent, with deemed date of injury of 12 August 2021. Ms Williams was previously employed by Joss, working as a cleaner on a part time basis. Ms Williams duties included cleaning in schools. Ms Williams is currently 70 years of age.
Ms Wiliams claims weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 (1987 Act) from 12 October 2021 to 12 October 2022 on the basis she has had no current capacity for work during this period. Ms Williams also claims the cost of medical and related treatment expenses payable under s 60 of the 1987 Act for her injury.
The circumstances of Ms Williams’ injury are described in the following terms:
“…the injury occurred as a result of events arising out of, or in the course of employment concerning the direction to be vaccinated commencing on 12 August 2021 to 10 October 2021.”
Ms Williams’ claim is declined, and she has been issued with notice of the decision to decline her claim in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998.

ISSUES FOR DETERMINATION

Joss does not dispute Ms Williams sustained primary psychological injury in the course of her employment, with her employment being the main contributing factor to injury.
The parties agree the date of injury is 12 August 2021.
The parties agree the Ms Williams’ pre-injury average weekly earnings (PIAWE) are $1,661.11.
Joss does not dispute Ms Williams failed to comply with prescribed timeframe for providing notice of injury.
The parties agree that the following issues remain in dispute:
(a) whether Ms Williams’ injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by Joss with respect to discipline and/or dismissal, and if not,
(i)whether Ms Williams suffered an incapacity for work between 12 October 2021 and 12 October 2022 and has entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act resulting from the injury, and if so,
(ii)whether Ms Williams has entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act resulting from the injury.
The parties agree that as Ms Williams was in receipt of employment benefits up until the second week of 10 March 2022, in the event Ms Williams is successful in her claim for weekly compensation, there is to be credit for Joss for those employment benefits paid Ms Williams.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings came before me for preliminary conference on 13 March 2024 and with Ms Williams’ claim unresolved, these proceedings came before me for conciliation/arbitration hearing on 6 May 2024. Mr Dodd of counsel appeared for Ms Williams and Mr Pararajasingham of counsel appeared for Joss. Ms Williams was present.
Following my discussions with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents lodged on behalf of Ms Williams and attached documents, and
(d)    Application to Admit Late Documents lodged on behalf of Joss and attached documents.

Oral evidence

Neither party sought to adduce any oral evidence.

FINDINGS AND REASONS

Brief review of evidence

Statutory declaration of Ms Williams

In a statutory declaration of Ms Williams dated 30 September 2021, which I assume Ms Williams provided with her COVID-19 Vaccine Medical Contraindication Form (contraindication) dated the same day, Ms Williams declared:
“I do not want to have the COVID-19 vaccinations at present due to the fact that my father died of myocardial infarction due to coronary thrombosis, my mother died from lung cancer and bladder cancer, my brother had major heart operation at an early age, and I have had heart problems in the past. I wish to note that I am not a anti-vaxxer, but I am waiting for the right vaccine to come available such as Novavax”.

Statement of Ms Williams

Ms Williams provided a statement dated 2 January 2024. Ms Williams said she commenced working with Joss in November 2010, working as a cleaner on a permanent part time basis. Ms Williams said her cleaning duties included working at two government public schools.
Ms Williams relevantly explained:
“On 12 August 2021, I received a memorandum from Deborah Martin, HR Manager with Joss who encouraged all staff to be vaccinated. As soon as I read this memorandum I started to suffer from anxiety. I wanted to get clarification about the vaccination. I had fears because there was a strong family of blood clots and cardiac conditions which could cause possible dangerous adverse effects. I told this to members of staff, and they started to ostracise me, and I felt discriminated against. I started to suffer from loss of confidence and fears. I live in a small country town so the effects of being unemployed greatly aggravated the anxiety I was suffering.
On 6 September 2021 I received a letter from Jenny Ryan, Contract Manager with Joss, which stated that I need to be fully vaccinated by 08.11.2021. Once again my anxiety started to increase. Jenny Ryan said if I decided to be unvaccinated, I would be putting my employment at risk.
As a result of the vaccination from Joss at this point in time, and my decision not to be fully vaccinated because of the family history of blood clots and cardiac disease, I felt ostracised and discriminated against by my employer.”
Ms Williams went on to detail a number of symptoms she then began to suffer, which while mainly psychological in nature, included some which were physical in nature.
Ms Williams further explained:
“On 23 September 2021, the NSW Government issued the Public Health Order and the Public Health Order said that I could not carry out relevant work on or after 0.8.2021 unless I had two doses of COVID-19 vaccination… Joss Facility Management on 7 December 2021 said that to remain in employment with Joss Facility Management as a cleaner I was required to be vaccinated against COVID-19…
On 1 October 2021, I obtained a COVID-19 vaccine medical contradiction form from my general practitioner, Dr Saldevar… Joss Facility Management Pty Ltd would not accept my Medical Contraindication Certificate.
…
Due to the pressure from my employer to have the COVID-19 vaccine via mail and text messages, I was suffering from stress and needed time off from work to try and deal with the pressure of being vaccinated. I put in for leave on 12 October 2021.”
Ms Williams relevantly explained she wrote a letter to Joss on 15 October 2021 relevant to her reluctance to have the COVID-19 vaccinations at that point in time.
Ms Williams relevantly recounted the visit to her residence by Kathy Ross and Anne Carey on 21 October 2021, with the two women arriving in “a Joss vehicle”. Ms Williams said she did not want to speak to either of the women as she was on leave, and she felt they would want her to return to work due to difficulty Joss may experience in finding staff to replace her. Ms Williams said that after the women left she listened to Ms Carey’s voice message, which she said she found very distressing:
“Hi Angie came all the way to the Rock to see yah, but you’re not here. You need to give me call Lov. What the *** going on with you I rang you, been on Facebook and can’t find you and now we have been out here. Can you please call me next step I will call the cops to come find you for me.”
Ms Williams said she again wrote to Joss on 28 October 2021 requesting a response to her earlier letter dated 15 October 2021. Ms Williams said she subsequently received a letter from Joss in which she was advised to be vaccinated against Covid 19 by 8 November 2021 and that the medical contraindication she had been submitted was “an ineligible reason for exemption”. Ms Williams said she had also written to Joss detailing her objection to the visit by Ms Ross and Ms Carey and the verbal threat to call the police”. Ms Williams explained that the police visited her on 7 December 2021, with advice that the police had been asked to “check up on her whereabouts and safety”.
Ms Williams said on 21 December 2021 Joss sent a letter to her in which she was advised “our client has issued a directive that no medical exemptions will be accepted. I confirm that the decision regarding your medical exemption was based solely upon the above directions to which Joss must comply.”
Ms Williams also relevantly said:
“I have been totally incapacitated for work as a result of the events arising out of or in the course of my employment with my employer from 21 October 2021 … and my anxiety is increasing.”
While in her statement Ms Williams said her employment with Joss was terminated on 21 October 2021, this is clearly incorrect as elsewhere it is evidenced Ms Williams’ was advised of the termination of employment with Joss under cover of letter dated 31 March 2022.

Statement of Ms Ross

Ms Ross provided a statement dated 4 March 2024. Ms Ross is currently working in the role as cleaning supervisor with Joss. Ms Ross confirmed she met Ms Williams while working with Joss and developed a personal friendship with her, with the friends often meeting and communicating socially. Ms Ross confirmed that at the time she met Ms Williams, she was Ms Williams’ supervisor.
Ms Ross recalled being contacted by Joss in or about mid-October 2021 with Ms Reid expressing concern Ms Williams had been absent from work for a period of time. With Ms Ross unsuccessful in her attempts to contact Ms Williams by telephone, Ms Ross contacted Ms Carey who likewise was unable to contact Ms Williams by telephone.
Ms Ross said that together with Ms Carey, they decided to visit Ms Williams because they were worried about her. While Ms Ross accepted she drove with Ms Carey to Ms Williams’ residence in her vehicle which was supplied by Joss, Ms Ross said that neither she nor Ms Carey were in uniform and confirmed that (a) no-one from Joss had requested they visit Ms Williams and (b) they did not advise anyone at Joss that they were going to visit Ms Williams on 21 October 2021. Ms Ross was adamant the decision she made with Ms Carey to visit Ms Williams on 21 October 2021 “was undertaken solely in our personal capacity as a friend”.
Of the visit by Ms Ross and Ms Carey to Ms Williams on 21 October 2021 Ms Ross recalled:
“Anne went to talk to a neighbour who was outside when we arrived. Then we walked around to the back door of the property. We knocked on the door saying loudly ‘are you home? Let us know you’re okay …’ or words to that effect. There was no answer. We did hear a banging sound from inside the house, but no one answered the door, and I thought if Angela was home she surely would answer the door to us, so she mustn’t be home.
Anne rang Angela’s phone number while we were there. We did hear a phone ringing inside the house. Anne left a message along the lines of ‘If you don’t answer me shortly, I’m gonna have to call the coppers on ya’.
Anne decided to walk down to the back paddock to see if she could find Angela there. I went back to the car on my own and waited for Anne.
After we left the property and I drove Anne home, it was clear that Anne was still upset. I suggested that Anne should ring the police if she was worried. I believe that Anne did ring the police.”

Statement of Ms Carey

Ms Carey provided a statement dated 4 March 2024. Ms Carey is currently working in the role as mobile leading hand with Joss. Ms Carey confirmed she met Ms Williams while working with Joss and developed a personal friendship with her, and when Ms Carey ceased working at the same work site as Ms Williams, Ms Williams would contact her by telephone on a regular basis. Ms Carey confirmed she had met Ms Williams through Ms Ross, who was her supervisor.
Ms Carey confirmed being contacted by Ms Ross in October 2021 to ascertain whether she had had recent contact with Ms Williams as she reportedly had not been attending work and Ms Ross had not been unsuccessful in her attempts to contact Ms Williams. Ms Carey confirmed she had not had recent contact with Ms Williams and as she too was unsuccessful in her attempts to contact Ms Williams, Ms Carey sent her a text message along the lines “… not sure if you are all right, I’m a bit worried about you. Can you please just let me know you’re ok, just text me back if you don’t want to ring”, without response.
Ms Carey also noticed there had been no social media activity by Ms Williams “for a while” and on 21 October 2021 she relayed to Ms Ross her failed attempts to contact Ms Williams and suggested they visit Ms Williams “to check on her”.
While Ms Carey accepted she drove with Ms Ross to Ms Williams’ residence in a vehicle which was supplied by Joss, Ms Carey said that neither she nor Ms Ross were in uniform and confirmed that (a) no-one from Joss had requested they visit Ms Williams and (b) they did not advise anyone at Joss that they were going to visit Ms Williams on 21 October 2021. Ms Carey was adamant the decision she made with Ms Ross to visit Ms Williams on 21 October 2021 “was simply done in a personal capacity”.
Of the visit by Ms Carey and Ms Ross to Ms Williams on 21 October 2021 Ms Carey relevantly recalled:
“I walked over to a neighbour who was outside and introduced myself and told the neighbour we were looking for Angie. The neighbour said Eric had mowed the lawns yesterday.
The we walked around to the back door of the property. We knocked on the door, saying loudly ‘Are you home? Let us know you’re ok…’ or words to that effect. There was no answer. We did hear a banging sound from inside the house, but no one answered the door, and I thought if Angela was home she surely would answer the door to us, so she mustn’t be home.
I rang Angela’s phone number while we were there. We did not hear a phone ringing inside the house. I left a message along the lines of ‘if you don’t answer me shortly, I’m gonna have to call the coppers on ya.’
I decided to walk down to the back paddock where the horses are to see if Angela might be down there. Kathy went back to the car to wait. I could not see Angela and left a note on her back door saying something along the lines of ‘I came to see you. I’m worried about you. If I don’t hear from you I’ll have to call the coppers’
After I left the property I was quite upset and worried about Angela… Kathy suggested I ring the police if I wanted to so about a week after we attended the property I rang the Rock police station… I explained I was a work friend of Angela’s, that on one had seen her for a while and she had been off work sick, she wasn’t answering calls or messages. I told them I had been out to her house and knocked on the door, but no one had answered. I asked the police to do a welfare check to make sure Angela was alive”.
Ms Carey explained that the police later contacted her and said of Ms Williams:
“’She is physically ok. Mentally she is extremely stressed and agitated. She was ropeable that the police had gone to her property, and she was going off about Joss. She said she hates Joss and they’ve done this and that …’ or words to that effect”.

Correspondence

There is a significant amount of correspondence between Ms Williams and Joss relevant to Joss’ request for Ms Williams to receive the COVID-19 vaccination and I consider it useful to carefully canvass this correspondence.
A memorandum dated 12 August 2021 from Ms Martin to Ms Williams said in part:
“While there are varying views within the community regarding COVID-19 vaccination I am reaching out to all our staff to encourage you all to consider having the COVID-19 vaccination, because accelerating community vaccination is vital to the country’s COVID-19 recovery process…. Doing our part to lift vaccination rates and assist in fighting this pandemic is something we should strive for.”
A letter dated 6 September 2021 from Ms Ryan to Ms Williams said in part:
“Further to our recent correspondence regarding COVID-19 vaccination requirements for school cleaners, I can confirm the NSW Government issued a Public Health Order for Education and Care Workers on 23 September 2021.
The Public Health Order requires workers who performs work at government or non-government schools or an early education and care facility to be fully vaccinated against COVID-19 by 8 November 2021 to be able to carry out their duties.
If you are yet to provide us with evidence of either your first or second vaccination, we ask that you do this as a matter of urgency…
We appreciate the efforts that our workforce has already taken and look forward to receiving vaccination confirmations from the remainder of our employees.”
A memorandum dated 5 October 2021 from Ms Martin to Ms Williams said in part:
“I can confirm the NSW Government issued a Public Health Order for Education and Care Workers on 23 September 2021.
The Public Health Order requires workers who performs work at government or non-government schools or an early education and care facility to be fully vaccinated against COVID-19 by 8 November 2021.
This means that all NSW School Cleaners are now required to be fully vaccinated against COVID-19 by 8 November 2021 to be able to carry out their duties.
If you have yet to provide us evidence of either your first or second vaccination, we ask that you do this as a matter of urgency…
We appreciate the efforts that our workforce has already taken and look forward to receiving vaccination confirmations form the remainder of our Employees.”

Ms Williams received a text message from Joss on 8 October 2021 which notified her that her “urgent action was required” and reminded her “we are now only some 4 short weeks away from the Public Health Order becoming effective on November 8 which requires all staff to have been double vaccinated on all Education sites in NSW”. Ms Williams was notified that Joss’ records indicated that Joss did not have a copy of her vaccination certificate and she was asked to forward it to Joss. Ms Williams was notified of the timeline for having her first vaccine to enable her adherence to the deadline and was advised “if you are not double vaccinated by November 8, you will be unable to attend work”.
Ms Williams purportedly received a flyer on 14 October 2021 in which Joss encouraged persons to “get vaccinated” in order to “protect yourself and your workmates, family and neighbourhood”.
In a letter dated 15 October 2021 to Joss, which appears to be in response to the text message sent to her on 8 October 2021 by Joss, Ms Williams sought to be provided with answers to a number of questions regarding the request of her by Joss to be fully vaccinated, with conditional assurance that on receipt of the information she sought she would receive the required vaccines.
In a letter dated 28 October 2021 to Joss, Ms Williams noted she had not received response to her correspondence dated 15 October 2021 and said, “I would appreciate an immediate reply” to her correspondence as she was “very concerned about the COVID-19 vaccination deadline”.
A letter dated 24 November 2021 from Ms Martin to Ms Williams in response to Ms Williams’ letter to Ms Ryan dated 28 October 2021, said in part:
“Staff members from both our Albury and Wagga offices have attempted to contact you in regard to the COVID-19 vaccination, and our recent correspondence and communications regarding the COVID-19 vaccination requirements for school cleaners, and the Public Health (COVID-19 vaccination of Education and Care Workers) Order 2012 dated 23 September 2021. As you are aware the Order requires workers who performs work at government or non-government schools or an early education and care facility to be fully vaccinated against COVID-19 by 8 November 2021.
I wish to reconfirm that this Order applies to all cleaners employer the Whole of Government Facilities Management Services Cleaning Contract.
As a result of our communications you have provided us a COVID-19 Vaccine Medical Contraindication.
The Contraindication has been reviewed by the company and deemed as providing an ineligible reason for exemption.”
Ms Willliams was asked by Ms Martin to discuss the issue arising with her no later than midday on 3 December 2021 with caution “should we not hear from you; we will consider your ongoing employment with Joss Facility Management based on the information we have to hand.”
In a letter dated 29 November 2021 from Ms Williams to Ms Martin, Ms Williams documented both the visit to her by Ms Ross and Ms Carey on 21 October 2021 and what she described as the “abusive verbal phone call” she had received from Ms Carey with caution she would contact the police. Ms Williams said:
“I do not take likely to being harassed, threatened and bulled in which this has caused me extreme stress, anxiety, trauma and depression on top of the coerced forced vaccination by Joss Facility Management.”
Ms Williams also pointed out to Ms Martin that the fact that she had not yet had a response to her letter dated 15 October 2021 had caused her more stress.
In correspondence dated 30 November 2021, entitled Notice of Employment Particulars – Request for the Law for Mandated Vaccinations in employment, essentially addressed to Ms Martin, Ms Williams relevantly expressed her concerns regarding her requirement to be vaccinated, and relevantly said:
“It is my considered position that I serve myself, and my family, best if I refuse an experimental drug with known, and unknown, toxins and rely on my good health and natural immunity to safeguard my wellbeing.”
In a letter dated 7 December 2021 from Ms Martin to Ms Williams, Ms Ryan confirmed receipt of Ms Williams correspondence dated 15 October 2021, 29 November 2021 and 30 November 2021. Ms Ryan said that the queries raised by Ms Williams in her correspondence dated 15 October 2021 “are not for the Company to answer, these should be referred to a medical expert for response.” Ms Ryan also said:
“I acknowledge that the requirement under the Public Health (COVID-19 vaccinations of Education and Care Workers) Order 2021 dated 23 September 2021 was not in effect when you commenced employment with Joss Facility Management, however we are required to comply with legal directions that impact the workplace.
I reiterate to remain in employment with Joss Facility Management as a Cleaner, you will be required to be vaccinated against COVID-19.
The Order applies to all Cleaners employed under the Whole of Government Facilities Management Services Cleaning Contract.
I look forward to hearing from you and would be available to meet face to face should you prefer it. Could you please provide evidence of your vaccination status within 7 days of the date of this letter, otherwise I will have no alternative but to terminate the employment relationship.”
In a letter dated 9 December 2021 from Ms Williams to Ms Martin, Ms Williams relevantly sought information regarding the reasoning behind her requested exemption being ineligible, and reiterated her distress regarding being “harassed at my home premises on several occasions and by phone while on leave…”
In a letter dated 16 December 2021 from Ms Williams to Joss, Ms Williams referred to the visit by the police on 7 December 2021 “caused me extreme stress, anxiety and feel that I am being bullied.”
In a letter dated 21 December 2021 from Ms Martin to Ms Williams, Ms Ryan noted Ms Williams had made a claim for compensation with allegation she had “suffered constant stress, anxiety, bullying and harassment from work since April 2021”. Ms Ryan referred to the Public Health Order which required workers who perform work at schools and early education and care facilities to be fully vaccinated by 18 November 2021 and noted it have been repealed and re-issued with minor changes, with the new order being dated 15 December 2021. Ms Martin also said in part:
“In addition, our Client has issued a directive that no medical exemptions will be accepted. I confirm that the decision regarding your exemption was based solely upon the directions to which Joss must comply.”
Ms Ryan noted Ms Williams allegations of bullying and harassment, which she said she were required to investigated, and extended invitation to Ms Williams to meet with her during the week commencing 17 January 2022 to discuss with her both her allegations and the vaccination requirements.
A memorandum dated 19 January 2022 from Ms Martin to Ms Williams said in part:
“… Further to our previous communications regarding the NSW Government’s Public Health Orders mandating COVID-19 vaccination requirements for Cleaners it has now been indicated by the Government that the Order will updated shortly requiring that our Cleaning Employees will be required to show evidence that they have received the third booster vaccine to enable you to continue in your employment.
While the updated NSW Government Public Health Order has not yet been issued and no timeframe provided as to when an individual is required to have received the third booster vaccine, we encourage you to obtain your booster vaccine as early as possible to better protect yourself …”
In a letter dated 31 March 2022 from Ms Ryan to Ms Williams, Ms Williams was advised of the decision to terminate her employment with Joss, following her unnotified failure to attend a meeting on 30 March 2022 to discuss her employment with Ms Ryan. Ms Williams was advised in part:
“As you have utilised all of your sick/personal leave, your claim for workers compensation has been denied, you have refused to attend an Independent Medical Examination and you have refused to confirm your COVID-19 vaccination status, I advise that your absence is no longer a temporary absence, and I deem that you are not fit to undertake the inherit requirements of your job…”.

Lodgment and claim forms

In her lodgement form dated 18 January 2022 Ms Williams said she had received psychological injury resulting from her employment with Joss. The circumstances of injury are described:
“The injury occurred as a result of events arising out of or in the course of employment concerning the mandate to be vaccinated commencing on 23 August 2021 and continuing”.
Ms Williams said she ceased working on 11 October 2021, having commenced leave on 12 October 2021.
In her subsequent claim form dated 23 September 2022 Ms Williams described her injury in terms of “Depression – Reactive” and the circumstances of injury are described:
“Constant pressure to receive vaccination by Joss Facility Management before and after providing medical exemption while employed”
Ms Williams confirmed she had provided her first medical certificate on 11 October 2021.

Treating medical evidence
Dr Saldevar

Ms Williams has come under the general medical care of Dr Saldevar.
It is evident from Dr Saldevar’s clinical records that Ms Williams consulted with Dr Saldevar on 29 September 2021 with “vaccine hesitancy” after she received an email from work in which she was advised she “needs to be vaccinated” with the date “8 Nov 2021” noted. Dr Saldevar noted at that time that Ms Williams vaccine hesitancy was addressed and there is note she is “not antivax”.
I think it fair to say that Ms Williams’ subsequent consultations with Dr Saldevar on 30 September 2021 and 1 October 2021 were along the same lines as that of 29 September 2021, with Dr Saldevar consistently noting Ms Williams would receive the Novavax when that particular vaccine became available.
It is also evident from Dr Saldevar’s clinical records that Ms Williams consulted with Dr Saldevar on 11 October 2021 at which time Dr Saldevar noted:
“History:
Mandate
Not happy
But willing to get Novavox
Not keen on gene vaccines
No medications but
Strong fhx of stroke – mother, blood clot
Being bullied by work
Stress ++
Wanted some days off
Teary
Psych: Poor sleep. No early morning wakening. Normal mood. Normal self-esteem. No substance abuse. No suicidal thoughts.
Reason for contact:
COVID-19 (coronavirus) immunisation
Patient came in today to discuss COVID VACCINATIONS
-vaccine hesitancy addressed
-in depth clinical advice was given, well informed today regarding different vaccines and the difference in terms of mode of actions and age specific indications. Addressed Pros and cons, weighing the benefits vs risk. I discussed the contraindications and addressed her concerns. Anything associated with receiving COVID-19 vaccine was discussed today using evidence based medicine.
Patient was advised to check NSWHEALTH website for more advice and information or ring Covid vaccine hotline for more information and clarifications or booking”.
Dr Saldevar relevantly provided Ms Williams with a medical certificate on that occasion in which he certified her unfit for work until 17 October 2021.
I think it is fair to note that Ms Williams continued to consult with Dr Saldevar on a frequent basis during the period of her claim before the Commission, being from 12 October 2021 and 12 October 2022, with a constant documented concern raised by Ms Williams regarding the COVID-19 vaccination and the requirement she receive the vaccine to enable her to continue working with Joss. I think it is also fair to say it is apparent from Dr Saldevar’s clinical records that over time Ms Williams’ psychological fragility rapidly intensified and on 15 October 2021 Dr Saldevar provided diagnosis of “Depression-Reactive” with comment Ms Williams may require Employees Assistance Program (EAP) or counselling.
Dr Saldevar noted on 28 October 2021 that he had been showed a phone call, which Ms Williams felt “is harassment” and on 2 December 2011 Dr Saldevar noted Ms Williams had sought legal advice and had been provided with workers compensation paperwork to complete relevant to her psychological injury and “cont. saga with work and covid vaccination”.
When last reviewed by Dr Saldevar during the period of her claim before the Commission, being 6 October 2022, Dr Saldevar described Ms Williams as continuing to suffer reactive depression consequent on her refusal to receive the vaccine and Joss’ reaction to her refusal.
Under cover of letter dated 6 January 2022, Dr Saldevar referred Ms Williams for psychological counselling, with note of a history of “WC related bullying and harassment.”
Dr Saldevar provided Ms Williams with two contraindications:
(a) the form dated 1 October 2021 appears to be incomplete in that while Dr Saldevar certifies Ms Williams has medical contraindications to receiving the first dose of the COVID-19 vaccines available for use in Australia, being Pfizer and AstraZeneca, he provides no specified contraindication to Ms Williams receiving the first dose of Pfizer. However, I accept Dr Saldevar provides specified contraindication to Ms Williams receiving the first dose of AstraZeneca, being a history of blood clots, and
(b) the form dated 21 April 2022 confirms Ms Williams has a temporary medical contraindication for up to six months in light of her diagnosis of COVID-19 on 20 April 2022, with a positive rapid antigen test (RAT) test.
Dr Saldevar issued Ms Williams with a number of medical certificates in which he has certified Ms Williams with no current work capacity. Relevantly Dr Saldevar issued Ms Williams with medical certificates certifying her totally unfit for her preinjury duties between 11 October 2021 and 17 October 2021, 15 October and 22 October 2021, 22 October 2021 and 29 October 2021, 1 November 2021 and 5 November 2021, 4 November 2021 and 12 November 2021, 11 November 2021 and 25 November 2021, and 25 November 2021 and 3 December 2021. Also relevantly Dr Saldevar issued Ms Williams with Certificates of Capacity certifying her with no current work capacity resulting from her psychological injury caused by “const stress, anxiety, bullying, and harassment from work, esp. about the covid vaccination” between 2 December 2021 and 16 December 2022, 16 December 2021 and 16 January 2022, 17 January 2022 to 16 March 2022, 16 March 2022 and 16 April 2022, 17 April 2022 to 16 May 2022, 17 May 2022 to 16 June 2022, 16 June 2022 to 16 July 2022, 16 July 2022 and 16 August 2022, 16 August 2022 to 16 September 2022 and 16 September 2022 and 16 October 2022.

Independent medical evidence

Dr Rastogi

Ms Williams was assessed on 19 May 2022 by Dr Rastogi in her capacity as independent medical examiner. Dr Rastogi is a psychiatrist. Dr Rastogi provided a report dated 19 May 2022.
Dr Rastogi relevantly reported of Ms Williams:
“She stated that public order mandate requirements for vaccination were made on
26^th August 2021. The announcement was made for enforcing vaccine mandate for workers to work on school premises. She submitted a medical exemption provided by her GP on 1 October 2021 with statutory declaration. She stated that the staff were looking down on her and passed sarcastic comments to her as she unvaccinated. She was still getting clarification about vaccination. She stated that she was receiving emails from the Josh Facility management and were very intense and on a daily basis. There were daily emails and correspondence seeking updated on vaccination mandate and very short time frames with threats that staff would not be allowed on site if they had not been vaccinated. She was coerced to have two vaccinations within a week to return to work. She was responding with the seeking whether her exemption was accepted and what was her position.
She stated her anxiety increased significantly and she could not cope. She took time off on sick leave since 20^th October 2021. She was advised that if she did not comply with the mandate she would be terminated. She stated whilst on sick leave, the supervisor arrived at her home and left abusive text messages as they were short staffed and putting pressures on her to return to work. Ms Williams was petrified and did not want to answer the door. She was threatened by supervisor at her home and left a message that she would call the police to find her whereabouts. This caused further stress and anxiety and she felt under scrutiny with breach of her privacy.
She stated since then she was not getting answers for her emails, and she was left in the dark. She later received a reply for Josh Facility management that her exemption was rejected and not approved.
She stated that there is a strong family history of blood clots and cardiac disease as well as her having cardiac conditions in the past. This was causing hesitancy in seeking vaccination and she felt ostracised and discriminated.
She stated that her colleague who was in the same position who was unvaccinated continued to be employed and given allowances. This caused significant hopelessness and despair.
She was still researching the vaccine and was trying to seek further information about the effect of the vaccine. She stated that clinical trials had not been completed and there was incomplete data available as well as having issues with efficiency. She was concerned about potential adverse side effects including death.
She saw her GP in December 2021 and initiated workers compensation. The certificate of capacity stated that she has reactive depression and remains unfit to work in any capacity till date. She was offered to see a psychologist organised by Josh Facility management and the appointments were changed on three occasion and she never heard anything from them. She was then requested to have a meeting with them in the presence of a legal representative and she was unable to attend, and she was terminated in April 2022…
She was given another medical exemption on 21 April 2022 for six months by her GP due to having specified medical condition and her RAT test being positive. She submitted this to work and did not get any response.”
Following mental health examination, Dr Rastogi provided diagnosis of adjustment disorder with prominent anxiety. Dr Rastogi said of Ms Williams’ reaction to Joss’ response to the COVID-19 pandemic:
“She was overwhelmed, disappointed, crying with irritability and disappointed by way she was treated. She reported 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 the COVID pandemic and being terminated despite providing a medical exemption. Her self-esteem has plummeted, and she fells lost and ambivalent about the future.”
In response to specific questioning on causation, Dr Rastogi did not accept Ms Williams’ psychological injury was wholly or predominantly caused by action taken by Joss in respect to discipline and/or dismissal but rather accepted:
“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 termination of her employment despite providing medical exemption. She felt punished and discriminated and felt the undue pressures and coercion magnified her anxiety and distress leading to perpetuating of anxiety.”
Dr Rastogi provided opinion that as at the date of assessment, Ms Williams was incapacitated for work but accepted that “in the future, she can return to work with a new employer as a cleaner”. However, Dr Rastogi cautioned that the grievances Ms Williams harboured “need to be addressed otherwise she has a poor vocational prognosis and psychologically likely to decline with further incapacitation.”
Dr Rastogi provided opinion Ms Williams would benefit from psychological counselling.

Dr Vickery

Ms Williams was assessed by Dr Vickery on 7 March 2023 in his capacity as Independent Medical Examiner. Dr Vickery is a psychiatrist. Dr Vickery provided a report dated 7 March 2023.
Dr Vickery provided a history of Ms Williams having been employed with Joss as a cleaner between 2010 and 2022. Dr Vickery relevantly recorded:
“Ms Williams reported ‘the problems stated with COVID-19 and having to have the vaccines and I saw the General Practitioner as I have a history of heart problems and I was very concerned, and I sent a medical exemption certificate to my employer on 1 October 2021’.
Ms Williams reported ‘it was distressing me when I was hearing comments at work of how many people had COVID-19 and how many were dying and there was one time when I was asked by several other workers if I was vaccinated, and I became distressed and I took some sick leave.’
Ms Williams had taken carer’s leave and then personal leave from 10 October 2021 to 3 December 2021 and ‘my supervisor had contacted me several times to see if I could come back to work because of the difficulty finding staff to do my sites.’
In early October 2021 Ms Williams had received notification of the NSW Health Public Order that she was required to be double vaccinated by 8 November 2021 otherwise she could not return to work.
On 21 October 2021 ‘there were two workers who were my friends who visited my house and they had knocked on the door and walked around the house and were yelling out my name, but I didn’t want to talk to them, and I didn’t answer the door. They left a phone message that I found distressing as they threatened to call the cops if I didn’t contact them.’
Ms Williams reported ‘I wrote to HR, and explained my concerns about the vaccines, and I was referred to the Government Health Website.’
On 7 December 2021 the day before the Public health Order was to be implemented which excluded her from returning to work, she was notified her medical exemption was invalid and that she would be terminated if she did not provide proof of the vaccination.
…
In early December 2021 ‘a Policeman arrived at my place who had been notified by my work to check up on my safety as non-one had been able to contact me because I wouldn’t reply to any calls.’”
Following mental health examination, with Dr Vickery noting “Ms Williams was frustrated, angry and emotional when discussing her work issues and the governments vaccination policies” in response to specific questioning Dr Vickery relevantly reported:
(a)    Ms Williams’’ diagnosis was that of adjustment disorder with anxiety and depression with prolonged duration. Ms Williams’ injury developed in the course of her employment with Joss.
(b)    While prognosis is guarded, injury in the nature of adjustment “is generally positive for a full recovery.”
(c)    Ms Williams has a reduced capacity for work, with the cause being “in the context of stress related to the outcome of her choice to not be vaccinated and her subsequent termination”. Ms Williams is fit to return to work on reduced hours.
In evidence is notice from State Insurance Regulatory Authority (SIRA) in which insurers are advised that Dr Vickery’s appointment as a SIRA approved Injury Management Consultant had been revoked effective 17 March 2023.

Dr Kaplan

With Dr Vickery’s appointment as a SIRA approved Injury Management Consultant revoked, Ms Williams was subsequently assessed by Dr Kaplan in his capacity as independent medical examiner. Dr Kaplan is a psychiatrist. Dr Kaplan provided reports dated 5 April 2024 and 23 April 2024. It is evident from Dr Kaplan’s reporting that he had number of documents available to him at the time of his reporting, including Dr Saldevar’s clinical records and the reports prepared by Dr Rastogi and Dr Vickery.
While relevant to Dr Saldevar’s clinical records Dr Kaplan provided comment in his initial report “it is unsatisfactory that the medical file notes only commenced at the time of the work problems and the full file is required”, in his supplementary report Dr Kaplan described Dr Saldevar’s clinical records covering the period between 2009 and 2011 and then recommencing in 2021. Dr Kaplan noted the gap in Dr Saldevar’s clinical records arose from Ms Williams request not to release her ‘personal’ records. In his supplementary report Dr Kaplan also provided comment “there are a number of repetitions, including ‘cut and paste’ paragraphs on vaccination issues”.
Dr Kaplan relevantly reported of Ms Williams:
“…she sought vaccination exemption on the grounds that her father died of a cardiac illness, her brother had a stent inserted and she had palpitations but had not received treatment (2018). She learned of schoolteachers who had developed side effects and heard comments that people had died as well.
Ms Williams attributes her condition of anxiety and depression to the pressure to be vaccinated and the incident with two employees that led to the police coming around to her place which she regarded as bullying.
When she received the letter in response, she checked on the issues related to COVID vaccination.
Her employers put her under pressure to return to work because there was no one to replace at The Rocks during the COVID lockdown.
Ms Williams applied for personal (otherwise listed as carer) leave on 10 October.
Ms Williams described the incident where Kathy Ross and Anne Carey came to her home on 21 October when she also received an abuse phone call…
She was stood down on 8 November 2021.
On 31 March 2022 she received a letter of termination of employment listing a number of reasons”.
Dr Kaplan provided diagnosis of adjustment disorder with anxiety and depression, with an alternate diagnosis of Major Depressive Disorder and accepted Ms Williams’ employment is a substantial contributing factor to injury. Dr Kaplan said with regard to the cause of Ms Williams’ psychological injury “Her condition arises from losing her job because of the refusal to be vaccinated. Her interactions with her employers as detailed in the reports, including the time when two workers came to her house are contributory facts but secondary to the main issue”.
Dr Kaplan canvassed Ms Williams’ capacity for work and accepted she was unfit to for per pre-injury duties. However, Dr Kaplan provided opinion Ms Williams had capacity to work up to 20 hours each week in alternate duties.

Submissions

Mr Pararajasingham and Dr Dodds made oral submissions, which I have carefully considered. As a recording of counsel’s submissions is available to the parties on request I have not reproduced them here.

Determination

I am required to determine a number of issues in dispute.

Whether the primary psychological injury sustained by Ms Williams was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to discipline and/or dismissal.

While it is not disputed Ms Williams has sustained primary psychological injury, with deemed date of injury of 12 August 2021, with her employment being the main contributing factor to injury, Joss has raised defence under s 11A(1) of the 1987 Act.
Joss has the onus of establishing the defence (Pirie v Franklins Ltd[1] and Department of Education and Training v Sinclair[2]) and there are two aspects to the defence.
[1] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[2] [2005] NWCA 465 (Sinclair).
Firstly, the injury must be “wholly or predominantly caused” by Joss regarding one of the categories referred to in s 11A(1) of the 1987 Act and in Ms Williams’ case Joss rely on discipline and/or dismissal.
I think it is important to note at this point that in Kushwaha v Queanbeyan City Council[3] “discipline” is broadly defined as learning by instruction and the maintenance of that learning by training, exercise or repetition, with the narrow meaning of punishment or chastisement being secondary to this broader meaning. In Sinclair it was held that “discipline” extends to the entire process, including the course of an investigation. In Northern New South Wales Local Health Network v Heggie[4] Sackville AJA confirmed a broad view is to be taken of the expression “action with respect to discipline” prescribed in s 11A of the 1987 Act and said, “it is capable of extending to the entire process involved in disciplinary action, including the course of an investigation”.
[3] [2002] NSWCC 25.
[4] [2013] NSWCA 225; 12 DDCR 95.
Principles were discussed by the Commission as regards the “wholly and predominantly caused” aspect of s 11A(1) of the 1987 Act in Hamad v Q Catering Limited[5] with suggestion medical evidence is required to determine the causation issue. In Smith v Roads and Traffic Authority of NSW[6] the Commission accepted “wholly” and “predominantly” are different concepts and the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Cement Ltd v Bates,[7] Ponnan v George Weston Foods Ltd[8] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.[9]
[5] [2017] NSWWCCPD 6.
[6] [2008] NSWWCCPD 130.
[7] (1994) 35 NSWLR 452.
[8] [2007] NSWWCCPD 92.
[9] [2008 NSWWCCPD 96.
Relevant to the issue of causation of psychological injury, particularly when considering psychological injury caused in circumstances of a worker’s perception of real events occurring at work, in Attorney General’s Department v K[10] former Deputy President Roche usefully summarised the principles to be applied at [52]:
“(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 (President all in 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.”
[10] [2010] NSWWCCPD 76.
Deputy President Roche also 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…”
It is important to remember too that an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[11] 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.”
[11] [2013] NSWWCCPD 64.
Secondly, if it is established Ms Williams’ injury was “wholly or predominantly caused” by Joss’ actions regarding discipline and/or dismissal, then Joss is required to establish their actions were “reasonable”. In Northern New South Wales Health Network v Heggie[12] Sackville AJA 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”.
[12] [2013] NSWCA 225; 12 DDCR 95
Turning first to whether Ms Williams’ injury was “wholly or predominantly caused” by Joss’ actions or proposed actions regarding discipline and/or dismissal.
With no medical evidence to support argument Ms Williams injury was wholly or predominantly caused by Joss’ actions or proposed actions regarding discipline and my review of the evidence does not support argument the actions taken or proposed to be taken by Joss relevant to requirement Ms Williams be double vaccinated in order to continuing working with Joss were disciplinary in nature, I do not accept Ms Williams’ injury was wholly or predominantly caused by Joss’ actions or proposed actions regarding “discipline”. While there is reference in Joss’ communications with Ms Williams to her being unable to continue with her cleaning work or attend work unless she was double vaccinated and there is also reference in Joss’ communications with Ms Williams to consideration being given of her ongoing employment with Joss, possible termination of her employment with Joss and ultimate termination of her employment with Joss due to her not having provided confirmation that she had received double vaccination, in so far as I can ascertain there is no documented actions taken or proposed to be taken by Joss regarding discipline.
Ms Williams explained that on 12 August 2021 she received a memorandum form Ms Martin, which appears to be generic in form, that encouraged all employees to be vaccinated, with this memorandum causing her anxiety. Ms Williams explained she discussed her vaccination hesitation with Joss employees, and they began to ostracise her, which led her to feel discriminated against.
Ms Williams explained that on 6 September 2021 she received a letter from Ms Ryan with notification she was required to be fully vaccinated by 8 November 2021 so as to enable her to continue with her cleaning duties, with this letter causing Ms Willaims, against a backdrop of her vaccination hesitation due to a family history of blood clot and cardiac disease, to feel ostracised and discriminated against by Joss. This particular letter referred to the Public Health Order for Education and Care Workers 2021 which reportedly required all persons working at schools to be fully vaccinated by 8 November 2021 and requested evidence of employees’ first or second vaccines “as a matter of urgency”.
With the issuing of the Public Health Order for Education and Care Workers 2021 on 23 September 2021, Ms Williams consulted with Dr Saldevar on 29 September 2021 regarding her vaccine hesitancy. Ms Williams consulted with Dr Saldevar both the following day and the day after that, with an obvious escalating concern about Joss’ requirement that she be fully vaccinated by 8 November 2021 and her vaccine hesitancy. It was on 1 October 2021 that Dr Saldevar completed the first contraindication for Ms Williams, which was forwarded to Joss for review.
When Ms Williams consulted with Dr Saldevar again on 11 October 2021 regarding her ongoing concerns about Joss’ requirement she be fully vaccinated Dr Saldevar described Ms Williams as “being bullied at work”, suffering significant stress and teary. Dr Saldevar noted Ms Williams “wanted some days off” and certified her totally incapacitated for work until 17 October 2021. When Ms Williams consulted with Dr Saldevar on 15 October 2021, Dr Saldevar again certified Ms Williams totally incapacitated for work and on this occasion he provided diagnosis of “Depression – Reactive” and was sufficiently concerned about Ms Williams’ deteriorating mental health that he noted she “might need EAP or counselling.” It is evident Ms Williams continued to consult with Dr Saldevar on numerous occasions after this, with complaint about the distress she was experiencing as a result of her vaccine hesitancy and Joss’ reaction to her refusal to be fully vaccinated so as to enable her to undertake her school cleaning duties, including but not limited to the distressing voicemail message she received from her colleague, Ms Carey, albeit purportedly left in the capacity as a friend rather than a work colleague, the correspondence she had entered into with Joss and the ultimate termination of her employment, and it is critical I think that the diagnosis of Ms Williams’ psychological injury in the nature of reactive depression was made by her long term treating general practitioner without any reference to discipline and/or dismissal.
When Ms Williams was independently psychiatrically assessed by Dr Rastogi on 19 May 2022, which is significantly closer in time to Ms Williams’ psychiatric assessments with Dr Vickery in 2023 and Dr Kaplan in 2024, Dr Rastogi recorded a history of Ms Williams’ vaccine hesitancy and Joss’ reaction to her refusal to be vaccinated and also noted Ms Williams’ termination of employment following her inability to attend a scheduled meeting with Joss. While Dr Rastogi provided diagnosis of adjustment disorder with prominent anxiety consequent on “constant coercion and discrimination to receive vaccination as a mandatory requirement and termination of her employment despite providing medical exemption”, Dr Rastogi has not provided opinion Ms Williams’ injury was “wholly or predominantly” caused by action taken by or proposed to be taken on behalf of Joss with respect to dismissal.
When Ms Williams was independently psychiatrically assessed by Dr Vickery on 1 March 2023, Dr Vickery likewise recorded a history of Ms Williams vaccine hesitancy and Joss’ reaction to her refusal to be vaccinated and noted Ms Williams’ termination of employment on 31 March 2022. While Dr Vickery provided diagnosis of adjustment disorder with anxiety with prolonged duration, which he said was similar to reactive depression and accepted her injury developed in the course of her employment with Joss against a backdrop of her vaccine hesitancy and Joss’ reaction to her refusal to be vaccinated, he provided no opinion as to whether Ms Williams injury was “wholly or predominantly” caused by action taken or proposed to be taken on behalf of Joss with respect to dismissal, save to provide comment “Ms Willaims was distressed and depressed at the time of her termination however at other times there was no documented clinically depressive psychopathology by her General Practitioner”, which perhaps suggests Dr Vickery was of the opinion that Ms Williams’ psychological injury was caused by her dismissal.
When Ms Williams was independently psychiatrically assessed by Dr Kaplan on 5 April 2024, Dr Kaplan also recorded a history of Ms Williams’ vaccine hesitancy and Joss’ reaction to her refusal to be vaccinated and noted Ms Williams termination of employment on 31 March 2022 “for a number of reasons”. Dr Kaplan provided diagnosis of adjustment disorder with anxiety and depression, with an alternate diagnosis of Major Depressive Disorder and accepted her employment is a substantial contributing factor to injury and provided opinion Ms Williams psychological injury “arises from losing her job because of the refusal to be vaccinated”.

All of the independent medical examiners had the opportunity to psychiatrically assess Ms Williams following the termination of her employment and while I accept they have provided opinion Ms Williams’ dismissal has contributed to her psychological injury, Dr Rastogi, who had the opportunity to assess Ms Williams closest in time to the termination of her employment did not provide opinion that Ms Williams’ injury was “wholly or predominantly” caused by action taken by or proposed to be taken on behalf of Joss with respect to dismissal, but rather said Ms Williams’ injury was caused by “constant coercion and discrimination to receive vaccination as a mandatory requirement” together with “termination of her employment despite providing medical exemption”.
I am of the view Ms Williams has provided a credible history regarding the circumstances of her injury and following review of the evidence as a whole and consideration of counsel’s submissions I do not accept Ms Williams’ injury was wholly or predominantly caused by action taken or proposed to be taken by Joss with respect to discipline and/or dismissal, in circumstances where Ms Williams’ diagnosis of psychological injury on 15 October 2021 occurred against a backdrop of her consulting with Dr Saldevar regarding vaccine hesitancy following receipt of correspondence from Joss dated 12 August 2021 and 6 September 2021, and receipt of a flyer from Joss on 14 October 2021 all of which urged her to be vaccinated against COVID-19 at the earliest opportunity, with Ms Williams having provided Joss with a contraindication on 1 October 2021 to which she received response for some eight weeks. I am of the view the psychological injury Ms Williams sustained in the course of her employment with Joss resulted from Joss’ requirement for her to be double vaccinated by 8 November 2021, a requirement which was continued to be urged upon her by Joss in circumstances where Joss knew she suffered vaccine hesitancy and had in fact submitted a contraindication to which no response was provided to Ms Williams until some eight weeks later and well after the date on which she was required to be double vaccinated. I prefer to the reporting of Dr Rastogi to that of both Dr Vickery and Dr Kaplan as Dr Rastogi had the opportunity to assess Ms Williams shortly after the termination of her employment and she did not consider Ms Williams’ injury was wholly or predominantly caused by action taken or proposed to be taken by Joss with regards to her recent dismissal.
Even if I was to accept Ms Williams’ injury was wholly or predominantly caused by action taken or proposed to be taken by Joss with respect to dismissal (which I do not for reasons discussed above) Joss is required to establish that Joss’ actions taken or proposed to be taken with respect to dismissal were reasonable.
The circumstances surrounding Ms Williams’ injury are not without complication. It is evident there was a significant deterioration in Ms Willaims’ mental health following receipt of the memorandum from Joss dated 12 August 2021 and the letter from Joss dated 6 September 2021, in which she was advised of the pending Public Health Order for Education and Care Workers, following the issuing of which Ms Williams sought medical treatment on 29 September 2021, 30 September 2021 and 1 October 2021 during which her vaccine hesitancy was addressed, with a contraindication and statutory declaration addressing her vaccine hesitancy being forwarded to Joss on 1 October 2021. Despite Ms Williams’ submission of a contraindication and supporting statutory declaration on 1 October 2021, Ms Williams received a further memorandum dated 5 October 2021 from Joss, a text message on 8 October 2021 from Joss and a flyer on 14 October 2021 from Joss, all of which strongly advocated for Ms Williams to be double vaccinated. Under cover of letters dated 15 October 2021 and 28 October 2021 Ms Williams sought clarification from Joss regarding the requirement she be double vaccinated, which were not responded to by Joss until 24 November 2021, being a date well past the deadline of 8 November 2021, at which time Ms Williams was advised that that her contraindication had been reviewed and “deemed as providing an ineligible reason for exemption”. It was at this time too that Ms Williams was cautioned consideration could be given to her ongoing employment with Joss.
I am mindful of the rather difficult position Joss may have been in regarding management of school cleaning staff, including Ms Williams, during what was a demanding time for all persons working within schools in New South Wales. However, I do not think it is “reasonable” for Joss to have continued to urge Ms Williams to be double vaccinated following receipt of her contraindication on 1 October 2021 without advising her that contraindication had been deemed as providing an ineligible reason for exemption. Neither do I think it “reasonable” for Joss to have not contacted Ms Williams regarding the status of her contraindication, which had been submitted to Joss on 1 October 2021 until 24 November 2021 (being a date well passed the deadline of 8 November 2021) with caution that consideration could be given to her ongoing employment with Joss.
In all of the circumstances known to Joss at the time Ms Williams received caution about her ongoing employment with Joss under cover of letter dated 24 November 2021, I am of the view it was not reasonable for Joss to provide such a caution with ultimate dismissal, particularly in circumstances where Ms Williams had not previously been advised of the status of her contraindication, and Dr Saldevar had been providing Ms Williams with medical certificates in which he had certified her with totally unfit for work since 11 October 2021 .
For the reasons discussed above I am not satisfied Joss has discharged the onus of proof required and Joss cannot rely on defence raised under s 11A(1) of the 1987 Act.

Capacity

It is not disputed Ms Williams sustained psychological injury in the course of her employment with Joss, with deemed date of injury of 12 August 2021, with her employment being the main contributing factor to injury and I am not satisfied Joss has discharged the onus of proof required to entitle reliance on the defence raised under s 11(A)(1) of the 1987 Act. It follows Ms Williams may have an entitlement to weekly compensation payable under s 36 and s 37 of 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.”
Section 37 of the 1987 Act relevantly provides for weekly payments during an injured worker’s second entitlement period. The provisions of s 37 of the 1987 Act requires 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:
Assessment of Ms Williams’ capacity for work between 12 October 2021 and 12 October 2022 involves consideration as to whether during that period Ms Williams 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 Williams’ capacity to undertake not only her pre-injury employment with the Joss 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.[13] It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[13] [2014] NSWWCCPD 55 (Dewar).
It is evident Ms Williams consulted with Dr Saldevar on a frequent basis since 29 September 2021 with complaint about the distress she experienced associated with the requirement by Joss that she receive the vaccination against COVID-19. It is evident Ms Williams’ mental health deteriorated significantly over time with Dr Saldevar consistently certifying her with no current capacity for work since 11 October 2021, providing diagnosis of reactive depression on 15 October 2021 with such diagnosis remaining when last reviewed by Dr Saldevar during the period of her claim for weekly compensation on 11 October 2022. Dr Saldevar also referred Ms Williams for psychological counselling on 6 January 2022, which is also during the period during which Ms Williams claims weekly compensation.
When Ms Williams was psychiatrically assessed by Dr Rastogi on 19 May 2022, which is during the period during which Ms Williams claims weekly compensation, Dr Rastogi considered Ms Williams was totally incapacitated for work.
Ms Williams psychiatric assessments with both Dr Vickery and Dr Kaplan do not occur during the period during which Ms Williams’ claims weekly compensation and therefore I do not consider opinion provided by Dr Vickery or Dr Kaplan as to Ms Williams’ capacity for work to be of the same forensic value as opinion provided by Dr Rastogi. In any event, as at 7 March 2023, Dr Vickery accepted Ms Williams had an incapacity for work resulting from her injury and a year later Dr Kaplan also accepted Ms Williams had an incapacity for work resulting from her injury.
Having considered the evidence as a whole and noting Ms Williams enjoys the support of Dr Saldivar, under whose general medical care she was during the period of her claim for weekly compensation and Dr Rastogi who had the opportunity to psychiatrically assess Ms Williams during the period of her claim for weekly compensation, I accept Ms Williams has had no current capacity for work between 12 October 2021 and 12 October 2022 resulting from her injury.
For the reasons discussed above I am satisfied Ms Williams had no current capacity for work between 12 October 2021 and 12 October 2022 resulting from her injury and has entitlement to weekly compensation payable under s 36 (1) and s 37(1) of the 1987 Act.

Quantification of entitlement to weekly compensation

Ms Williams PIAWE is agreed to be $1,661.11.
I am satisfied that between 12 October 2021 and 12 October 2022 Ms Williams had no current capacity for work and accordingly Ms Williams has entitlement to weekly compensation between 12 October 2021 and 12 October 2022 as follows (with credit to Joss for benefits paid to Ms Williams during the period 12 October 2021 and 12 October 2022):
(a) $1,578.05 payable under s 36 (1), and
(b) $1,328.89 payable under s 37(1) (to be indexed).

Treatment

It is not disputed Ms Williams sustained psychological injury in the course of her employment with Joss, with deemed date of injury of 12 August 2021, with her employment being the main contributing factor to injury and I am not satisfied Joss has discharged the onus of proof required to entitle reliance on the defence raised under s 11(A)(1) of the 1987 Act. If follows Ms Williams may have an entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act.
As before, it is evident Ms Williams consulted with Dr Saldevar on a frequent basis since 29 September 2021 with complaint about the distress she experienced associated with the requirement by Joss that she receive the vaccination against COVID-19 and it is evident that Ms Williams’ mental health deteriorated significantly over time with Dr Saldevar providing diagnosis of reactive depression on 15 October 2021 and referring Ms Williams for psychological counselling on 6 January 2022.
When Ms Williams was psychiatrically assessed by Dr Rastogi on 19 May 2022, Dr Rastogi provided diagnosis of adjustment disorder with prominent anxiety and provided opinion Ms Williams would benefit from psychological counselling. When Ms Williams was psychiatrically assessed by Dr Vickery on 7 March 2023, Dr Vickery provided diagnosis of adjustment disorder with anxiety and depression and described Ms Williams prognosis as guarded. When Ms Williams was assessed by Dr Kaplan, while Dr Kaplan provided a report dated 5 April 2024 in which he provided diagnosis of adjustment disorder with anxiety and depression with an alternate diagnosis of Major Depressive Disorder, he provided no comment as to treatment.
Ms Williams said in her statement dated 2 January 2024 that she remains significantly symptomatic.
Having considered the evidence as a whole, I accept Ms Williams has entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act for her injury.
For reasons discussed above I am satisfied Ms Williams has entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act, including the costs of consultations with her general practitioner particularised in the sum of $1,288.40.

SUMMARY

Ms Williams’ primary psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the Joss with respect to discipline and/or dismissal.
Ms Williams has had no current capacity for work between 12 October 2021 and 12 October 2022 resulting from her injury. Ms Williams’ PIAWE are agreed to be $1,661.11. Ms Williams has entitlement to weekly benefits payable under the 1987 Act as follows (with credit for Joss for benefits paid to Ms Williams during the period 12 October 2021 and 12 October 2022):
(a) $1,578.05 payable under s 36 (1), and
(b) $1,328.89 payable under s 37(1) (to be indexed).
Ms Williams has entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act, including the costs of consultations with her general practitioner particularised in the sum of $1,288.40.

[2024] NSWPIC 344

28 June 2024