Boyd v Secretary, Department of Education (NSWPIC 2023)

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Key Takeaways

In this matter, the employer successfully established a s11A defence after communicating to teachers that they needed to be double vaccinated in accordance with the NSW Government’s vaccine mandate in 2021.

Brief Facts

The applicant had commenced work with the employer in 2021 as a teacher at Nowra High School.

The applicant alleged that she developed a psychological injury following the NSW government’s vaccine mandate commencing on 23 August 2021. She alleged that she received two emails from Georgina Harisson, Secretary of the Department of Education, on 27 August 2021 which indicated that all teachers had to be fully vaccinated by 8 November 2021.

Since receiving this email correspondence, and her decision not be fully vaccinated, the worker developed psychological symptoms, including anxiety and depression. She sought medical treatment within two weeks of the email correspondence.

Determination

The dispute came before Member Isaksen who was required to determine the following:

1. whether the worker sustained an injury and whether her employment was the main contributing factor to that injury;
2. whether the actions taken by the employer related to discipline;
3. whether the worker’s injury was wholly or predominantly caused by the actions of the employer in respect of discipline; and
4. whether the employer’s actions were reasonable.

Member Isaksen determined that there was a clear causal relationship between the worker’s employment as a teacher and the mandatory direction by her employer for her to be double vaccinated to continue in her employment as a teacher. Consistent with the treating medical evidence, it was her psychological reaction to that direction which was the main contributing factor to the contraction of her psychological condition.

In respect of s11A, Member Isaksen accepted that the correspondence, directions and guidelines issued by the employer and communicated to the worker were the predominant cause of her psychological injury, and that this action amounted to ‘discipline’. Therefore, the contentious issue here is whether the action was ‘reasonable’.

The worker submitted that she received various emails and communication from employees of the employer after 27 August 2021 which she perceived as coercive attempts to ‘have a trial drug injected to her body’ and which raised the possibility of termination. However, upon review of the available evidence, Member Isaksen could not identify any ‘real events’ that justified these perceptions.

The Member determined that the employer acted reasonably within the requirements set by the NSW Government in the Public Health Order 2021 (COVID-19 Vaccination of Workers). The employer appropriately issued email correspondence to all teachers on 27 August 2021, and issued Guidelines in accordance with the Public Health Order issued some two weeks earlier.

Having regard to ’the objective of the employer’ (Irwin), these actions were reasonable in light of the NSW government’s aim of ‘returning teachers and students to face-to-face learning’ amid an ongoing COVID-19 pandemic.

Implications

This case highlights that establishing the s11A defence is a highly fact-specific exercise, which involves a consideration of medical and factual evidence.

Whilst the s11A defence was established in this matter, Member Isaksen indicated that the threat of the worker’s dismissal would not appear to have been reasonable given that she had been employed for a number of years and that there should be some allowance for ‘uncertain times’ during the COVID-19 pandemic. However, the Member noted that there was no available evidence to suggest that the threat of termination had any impact on the worker’s psychological condition until after she had become totally unfit for work.

Further, Member Isaksen also considered whether there was judicial comity between the present matter and three other disputes already decided by the Commission in regard to the Covid-19 vaccine mandate for education workers. On this issue, the Member determined that judicial comity is limited to questions of law and has no application to factual issues, such as the s11A defence.