Dawking v Secretary (Department of Education) (NSWPIC 2022)

Link to Decision

Key Takeaways

The Department of Education’s (Department) s11A(1)1¹ defence failed in a situation where the worker, a school teacher, suffered a psychological injury as a result of refusing to be vaccinated and her employment being terminated.

The Department failed on a lack of medical evidence regarding ‘whole or predominant cause’. The Department also did not have enough evidence that it acted reasonably, despite the large-scale public health implications at the time. Member Batchelor, agreeing with the worker, considered that it was the implementation of the Public Health Order by the Department that was the cause of the worker’s injury, rather than the mandate itself.

Brief Facts

By email dated 27 August 2021 sent by the Department, the worker was advised that the Premier of NSW was expected to announce that, as with aged care and health sectors, mandatory double doses of vaccination would be required for all public school and preschool staff from 8 November 2021.

On 24 September 2021 the worker received a letter from the Department which advised that she must be double vaccinated by 8 November 2021, otherwise she would be considered guilty of misconduct and liable for disciplinary actions including possible termination of her employment.

The worker claimed that as a result of the vaccination mandate and her decision not to be fully vaccinated, she started to suffer a number of symptoms for which she consulted a psychologist on 12 October 2021.

On 18 October 2021, the Secretary of the Department issued a Determination making it a condition of employment in the Teaching Service to be double vaccinated unless the employee was unable to be vaccinated because of a medical contraindication. Staff were therefore required to provide proof of their vaccination or a medical contraindication certificate by 8 November 2021.

On 19 October 2021 the worker made a claim for weekly benefits and medical expenses as a result of psychological injury suffered due to the refusal to be double vaccinated for COVID-19.

Allianz Australia Insurance Limited as agent for NSW Self Insurance issued a s78 notice denying liability for the worker’s claim for compensation. The Department relied on a defence of reasonable action in respect of discipline pursuant to s11A of the Workers Compensation Act 1987 (1987 Act).

The worker was terminated from her employment on 8 November 2021 for a failure to comply with the NSW Government’s Public Health Order 2021 (COVID-19 Vaccination of Workers).

Judgment

The primary issues for consideration were:

1. Whether the worker had sustained a psychological injury in the course of her employment.
2. Whether the worker’s employment was a substantial contributing factor to a personal injury or, if the worker was found to have sustained a disease injury, whether the worker’s employment was the main contributing factor to a disease injury (pursuant to s9A and s4 of the 1987 Act, respectively).
3. Whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the Department in respect of discipline (pursuant to s11A of the 1987 Act).

The worker relied on medical evidence, which diagnosed a psychological condition that arose out of or in the course of her employment with the Department as a teacher. The worker submitted that the Department, in respect of the reasonableness or otherwise of its actions, did not consider anything other than a medical contraindication.

The Department’s primary submission was that the sole, or at least the main, cause of the worker’s distress was the introduction of the requirement that she receive a vaccine in order to continue her job. It submitted that this was not a requirement of the Department, but a requirement of the government introduced by the Public Health Order. Therefore, the Department submitted that there was no basis for a conclusion that the cause of the worker’s distress and illness was any action taken by her employer. The Department dealt with the s11A defence it relied on by noting that it was only relevant if it was not successful in its primary submission.

Injury

Member Batchelor held that the worker suffered psychological injury arising out of or in the course of her employment with the Department, which was the main contributing factor to her psychological injury.

The worker’s medical evidence was that she developed heightened anxiety with adjustment disorder following coercive emails to receive a COVID vaccination. The Department did not produce any medical evidence in the proceedings. Therefore, based on the medical evidence tendered by the worker, Member Batchelor was satisfied, on the balance of probabilities, that the worker sustained psychological injury arising out of or in the course of her employment, and that employment was the main contributing factor. It was concluded that the worker commenced to suffer this injury with the receipt of the email from the Department on 27 August 2021.

s11A

Member Batchelor held:

• The injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the Department in respect of discipline.
• The actions taken by the Department with respect to discipline were not, in the circumstances of this case, reasonable.

Citing Hamad² Member Batchelor emphasised the obligation to obtain expert medical evidence connecting the psychological injury to the actions relied upon by the employer when a matter encompasses possible multiple causes for the injury.

Member Batchelor stated that the Department had not produced any medical evidence to show that the action that it claimed it took with respect to discipline, reasonable or otherwise, was the whole or predominant cause of injury.

Implications

This case confirms the importance of establishing the relevant causal connection of an injury – this is done by closely evaluating the evidence, both medical and factual.

Concerning s11A(1), this case highlights the importance for an employer to obtain expert medical evidence (in addition to factual evidence) to discharge its onus in proving a worker’s psychological injury resulted ‘wholly or predominantly’ from reasonable action to be taken or proposed to be taken with respect to discipline.

Further, inquiry as to the reasonableness of the employer’s actions in respect of discipline must focus on the incidents which have caused the injury. In this matter, it was held that the Public Health Order was not causative of the injury, rather it was the way the mandate was communicated.