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Employer successful in s11A defence regarding vaccine mandate

  • Newsletter Article
  • Published 15.02.2024

Martsoukos v Secretary, Department of Education (NSWPIC 2024)

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Key Takeaways

The Personal Injury Commission (PIC) accepted that the worker’s psychological injury was wholly or predominantly caused by the proposed actions of the employer in response to the NSW Government’s COVID-19 vaccine mandate. The Member found that the actions proposed by the employer were reasonable and fell within the s11A(1) category of discipline.

Brief Facts

The injured worker was employed with the Department of Education (the employer) as a high school teacher. She alleged to have suffered a psychological injury following receipt of an email from the employer requiring all NSW public school staff to be fully vaccinated by 8 November 2021. The email was sent ahead of the Public Health Order issued by the NSW Government in September 2021.

Following the initial email, the employer issued a Direction stating that employees that failed to comply with the vaccination requirements would face disciplinary action. The employer introduced a policy regarding non-compliance soon thereafter.

The worker alleged that she felt ‘bullied and harassed’ by her employer in requiring her to be fully vaccinated before returning to work. She attempted to submit a medical exemption which was rejected as the practitioner who issued the exemption was not registered. She went on sick leave prior to the implementation of the vaccination mandate on 8 November 2021.

The worker made a claim for an alleged psychological injury, in response to which, a defence under s11A(1) of the Workers Compensation Act 1987 was raised on behalf of the employer. The employer relied on factual and medical evidence to support an argument that the worker’s psychological injury was wholly or predominantly caused by reasonable action taken with respect to the category of discipline.

The worker commenced proceedings in the PIC claiming weekly payments and s60 expenses in relation to her alleged psychological injury sustained on 27 August 2021.


The employer conceded the worker had suffered a psychological injury. Accordingly, the issue to be determined was whether the employer could rely on the provisions of s11A to defend the claim. The Member noted that the following elements were to be considered:

  • has the employer established that the worker’s injury was wholly or predominantly caused by the actions of the respondent?
  • If so, do they relate to discipline?
  • What were those actions taken or proposed to be taken?
  • Were they reasonable?

Wholly or predominantly

The Member referred to Hamad and accepted the employer’s medical evidence that its actions were the predominant cause of the worker’s psychological injury noting that the onset of the worker’s symptoms began upon receipt of the email regarding the vaccine mandate.


The Member applied the narrow definition of ‘discipline’ in Kushwaha, stating that ‘actions of implementing adverse consequences for inappropriate behaviour’ amounted to discipline for the purposes of s11A. He viewed the wording of the correspondence issued by the employer as being indicative of a disciplinary process and as such, the worker was aware that non-compliance of the vaccine mandate would result in disciplinary action.

Actions taken or proposed to be taken

No disciplinary action was taken because the worker became ill before she was required to comply with the vaccination order and remained on sick leave until she was medically retired in August 2023. It was however held that the actions of the employer as set out above were concerned with action ‘proposed’ to be taken in regard to the enforcement of the Public Health Order.


The Member was satisfied that the actions of the employer were reasonable in acting in accordance with the NSW Government’s Public Health Orders. He considered the employer took care to notify staff of the actions proposed to be taken in respect of the vaccine mandate. He reasoned that the employer was acting in accordance with the Public Health Order in ensuring the protection of children in returning to face-to-face learning during a global pandemic.


This case follows a string of PIC decisions dealing with psychological injuries arising from the COVID-19 vaccine mandate. Each decision has turned on its individual facts and the evidence relied upon by the parties. Section 11A (1) defences can often be difficult to maintain in the PIC mainly due to inadequacies in the evidence. This case demonstrates that these defences can be upheld in circumstances where there is strong factual evidence to support the reasonableness of an employer’s actions along with medical evidence confirming those actions were the whole or predominant cause of a worker’s psychological injury.