Colin Joss & Co Pty Limited v Williams (NSWPICPD 2025)

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Key Takeaways

In this decision, the Commission explored what is meant by ‘discipline’ as a category that appears in 11A (1) of the the Workers Compensation Act 1987 as a defence to claims for psychological injuries. The decision provides guidance on what should be included in correspondence from an employer in order for it to fall within the ‘discipline’ category.

Brief Facts

The worker was employed as a contract cleaner, working at schools. Between August and September 2021, the worker was notified by her employer that she was required to be double vaccinated to carry out her cleaning duties. The notification did not explicitly state that the worker’s employment may be terminated if she was not double vaccinated.

Between October and November 2021, the worker was subsequently notified that if she was not double vaccinated her employment could be at risk.

The worker submitted evidence to support she was exempt from receiving the COVID-19 vaccination. However, on 31 March 2022, her employment was terminated after she failed to provide a sufficient reason for that exemption.

The worker submitted a claim for a psychological injury. The employer accepted that the worker suffered a work-related psychological injury, but relied on the 11A (1) defence which states;

Compensation is not payable if the injury wholly or predominantly results from reasonable action taken or proposed to be taken by the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or the provision of employment benefits.

The employer argued that the worker’s psychological injury was wholly or predominantly caused by the employer’s action in respect of:

• discipline - notifying the worker of the requirement to be double vaccinated; and
• dismissal - terminating her employment after she was not double vaccinated.

Judgment

At first instance, the Member found that the employer’s action of notifying the worker of the requirement to be double vaccinated did not amount to disciplinary action. Therefore, the Member was not satisfied that the employer’s relevant action was the predominant cause of the psychological injury. The employer’s defence to the claim failed as a result.

The employer appealed the Member’s decision.

The Presidential Member was satisfied that a breach of policy which could result in chastisement was sufficient to establish disciplinary action. However, he was not persuaded that the notification provided by the employer in this case was sufficient to meet this requirement. The notification did not contain any proposed sanction or punitive action if the worker was not double vaccinated to be considered discipline. The Presidential Member was satisfied that later correspondence amounted to action with respect to discipline, when the worker was notified that without a double vaccination her employment could be at risk. However, as the later correspondence was not found to be the whole or predominant cause of the psychological injury, the 11A defence failed again on appeal.

Implications

For an action of an employer to be classified as discipline, the worker must be notified that some sanction or punitive measure could or would be taken if a direction is not followed.

This case also serves as a good example of the evidentiary burden which lies on employers to establish all elements of a 11A defence. That is, not just that the action was reasonable, but first that the action actually falls into a 11A category.