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Secretary, Department of Education v Davis [2024] NSWPICPD 18 (25 March 2024)

Last Updated: 2 April 2024

INTRODUCTION

1. During the COVID-19 pandemic in 2021, the NSW Government required its school-based staff to receive two COVID-19 vaccinations in order to continue working. The respondent, Ms Melissa Davis who was employed as a “School Learning Support Officer”, claimed to have developed a psychological injury arising from the implementation of this mandatory requirement, between 27 August 2021 to 8 November 2021. In proceedings before the Personal Injury Commission (the Commission), Principal Member Bamber determined that Ms Davis had sustained a psychological injury, and that there was no defence available to the appellant pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act), a defence which requires the appellant, the Secretary, Department of Education, to prove that the injury was wholly or predominantly caused by reasonable action taken by it in respect of either “transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers”^[1].^[2]
2. The appellant alleges that the Principal Member erred in her finding on s 11A of the 1987 Act, and this is the issue before me in this appeal. Before setting out the background of this matter, I repeat a statement made by the Principal Member at the outset of her decision which is of relevance here. As stated by the Principal Member: “this case does not turn upon whether the Government’s COVID-19 response and vaccine mandate were reasonable. These were lawful steps taken by the Government in response to a world-wide pandemic in which many people who contracted COVID-19 died. The steps taken were designed to minimise illness and death of members of the community, including to the school community made up of workers and children”.^[3] The case before her turned on the distinction between the respondent’s psychological condition arising from her reaction to the Government mandate, and the actions of the employer.

BACKGROUND

3. The respondent worked at the Verona School in Fairfield, where she worked with the school’s teaching staff to provide assistance and implement programs which support students with additional needs on a one-on-one basis.
4. The respondent suffers from various medical pre-existing conditions, including diabetes and auto-immune conditions. The history of these was set out in great detail in her statement dated 2 February 2022.^[4] These conditions were not employment related, although as a result of these health challenges, the respondent was auto-immune compromised which is a relevant matter when it comes to this dispute, and the respondent’s concerns about receiving the COVID-19 vaccination.
5. When the COVID-19 pandemic commenced in 2020, given the respondent’s auto-immune status, she was permitted to, and did, work from home providing online support to staff and students. This continued during multiple lockdowns throughout 2020 into 2021.
6. On 27 August 2021, the Secretary of the NSW Department of Education emailed all school-based staff advising them that the Premier of NSW was expected to announce that they would require mandatory double doses of the COVID-19 vaccination from 8 November 2021.^[5] On the same day, a second email was sent, which confirmed this announcement.^[6] The respondent asserts that this is when she began to feel anxious about receiving the mandatory vaccination and the effect it may have on her body, noting her medical history.
7. On 2 September 2021, the Deputy Secretary, Chief People Officer of the appellant sent an email to all school-based staff confirming the vaccination requirements by 8 November 2021.^[7] In the days following this, email correspondence ensued between the Verona School principal, Ms Scott, and the respondent, in which Ms Scott confirmed the vaccination requirements and advised that work-from-home arrangements for staff would not be supported from 8 November 2021.^[8] Ms Scott advised the respondent that she did not intend to pressure her into receiving the vaccine, but needed to discuss the way forward as it could affect staffing at the school.^[9]
8. According to the respondent, in a telephone conversation on 6 September 2021, the respondent expressed to Ms Scott her anxieties regarding the vaccination, given her prior medical history. She says that Ms Scott informed her of other staff being concerned about working with an unvaccinated staff member. Ms Scott expressed sympathy about the respondent’s concerns, but reiterated she could not return unless fully vaccinated. The respondent said this made her feel discriminated against. On this same day, the respondent consulted her general practitioner, Dr Nguyen, about the safety of the COVID-19 vaccination and the potential risks involved.^[10]
9. The respondent said Ms Scott offered her support in text messages after this exchange, and on 9 September 2021, the respondent received her first dose of the vaccine, to which she claimed to react poorly, both physically and psychologically. She visited Dr Nguyen again on 20 September 2021 with feelings of anxiety, at which point, the doctor implemented a Mental Health Care Plan.^[11]
10. On 23 September 2021, the then Minister for Health and Medical Research, the Hon. Brad Hazzard MP, issued a Public Health Order directing education and care workers that they must not carry out relevant work on or after 8 November 2021 unless the worker had:

(a) received two doses of a COVID-19 vaccine, or

(b) been issued with a medical contraindication certificate.^[12]

11. The respondent emailed Ms Scott on 29 September 2021 seeking advice and a risk assessment about the vaccine, including potential adverse reactions, its legal status, and risks, advising she would only be happy to receive it if it could be confirmed she would suffer no harm, and that her position would not be compromised in the organisation if she declined to receive the vaccination if it was still in trial stages.^[13] She also sought advice from Dr Nguyen by way of a questionnaire as to whether she could be prescribed Ivermectin for the treatment and prevention of COVID-19, so she could be fully informed before proceeding with a second vaccine.^[14] The doctor advised she could not. On 1 October 2021, Ms Scott advised the respondent that she could not provide advice to individual staff about the vaccination program, but provided links to information on NSW government websites and indicated the Department may be able to provide more information.^[15] On 3 October 2021, the respondent requested the same advice directly from the Department Secretary.^[16] On 4 October 2021, the respondent informed Ms Scott that the period had been very difficult on her both physically and mentally and of her adverse reaction, by way of a rash on her arms, to the first vaccination.^[17] The respondent visited her general practitioner about this rash on 6 October 2021.^[18]
12. The respondent ceased work on 8 October 2021, and obtained a SIRA certificate of capacity from her general practitioner on 11 October 2021 certifying her as unfit for work as a result of stress/anxiety from this time.^[19] On 12 October 2021, a claim form for workers compensation was completed, which reported that her psychological injury occurred “as a result of events arising out of, or in the course of employment concerning the mandate to be vaccinated commencing on 27 August 2021 and continuing”.^[20] The respondent subsequently came under the care of psychologist, Anil Kaushik, who reported that she suffered from anxiety and depression from a fear of losing her job, as it requires her to be fully vaccinated but she had fears of side effects.^[21]
13. On 18 October 2021, the Secretary of the NSW Department of Education issued Determination No 1 of 2021 under the Teaching Service Act 1980, COVID-19 Vaccination Evidence, which required as a condition of employment that all staff receive two vaccinations and provide evidence of same, or a medical contraindication certificate if they could not be vaccinated.^[22]
14. On 21 October 2021, Dr Nguyen examined the respondent noting on-going side effects of the first vaccination on her physical health, as well as panic attacks. The respondent advised the doctor she did not wish to receive another dose of the vaccine.^[23]
15. On 25 October 2021, the appellant’s insurer disputed liability for the respondent’s workers compensation claim in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the basis of ss 4, 11A(3), 9A, 33 and 60 of the 1987 Act, as well as the defence pursuant to s 11A(1) of the 1987 Act.^[24] The insurer held that the respondent had not provided evidence of a psychological or psychiatric disorder, noting the diagnosis of “stress” by her general practitioner was insufficient. Furthermore, should the respondent prove a diagnosable injury, it was not compensable under ss 4 and 9A as it was not caused by employment, but rather was attributable to “the actions of the NSW Government generally and [her] personal concerns regarding the COVID-19 vaccine”. In the event the respondent proved injury, then, with regard to her concerns as to the potential to lose her job if not vaccinated, she would not be entitled to compensation as her injury was wholly or predominantly caused by action taken or proposed to be taken with respect to “transfer, discipline, dismissal, and/or the provision of employment benefits” pursuant to s 11A of the 1987 Act.
16. The insurer referred to the respondent’s employment being governed by the Teaching Services Act 1980 and the Education Teaching Service Regulation 2001 which provide that the protection of children is the paramount consideration when taking action against an employee, and that teachers are to comply with lawful directions given by the Department or the NSW Government. It was argued that the Department’s “actions in issuing and enforcing the directive [were] reasonable”, and that support was provided when implementing the mandate in regular communications. In the notice, the insurer acknowledged that it held “little medical evidence upon which to determine [the respondent’s] claim” and would be investigating the claim further, including seeking an independent medical examination and evidence from treating doctors.^[25] Ultimately, no independent medical report was tendered by the appellant in these proceedings.
17. On 1 November 2022, Dr Nguyen completed an immunisation medical exemption form exempting the respondent from receiving the second dose of the COVID-19 vaccination.^[26] Thereafter, the doctor recorded on-going psychological symptoms relating to the vaccination and also noted the respondent’s belief that COVID-19 was a conspiracy.
18. On 14 November 2021, the respondent was independently medically examined at the request of her solicitors by Dr Richa Rastogi, psychiatrist, who delivered a report of the same date.^[27] The report referred to the respondent feeling coerced and under duress due to the emails she received regarding the vaccine, and also described her feeling traumatised and fearful for her life. Dr Rastogi opined that the respondent’s existing mental health issues magnified following “coercive emails” to receive the vaccine, and that she “felt discriminated” and under duress to receive it, noting the adverse impact of the first dose on her physical and emotional wellbeing. The respondent was diagnosed with adjustment disorder with exacerbation of anxiety. The doctor was of the view that in the absence of any other stressors, the respondent’s employment was the main contributing factor to her condition, arising from “being coerced and discrimination [sic] to receive vaccination as a mandatory requirement and possible threat to her employment with no support provided. Her anxiety has been magnified and deteriorated following adverse reaction to vaccination and being ostracised further with possible termination threat causing vocational jeopardy and displacement”. Relevantly, the doctor found that the respondent’s condition was not wholly or predominantly caused by either discipline or dismissal.
19. Proceedings were commenced in the Commission on 31 March 2022, before Principal Member Bamber. The matter proceeded to written submissions as it could not resolve at conciliation. The matters for determination before the Principal Member were whether the respondent had sustained a psychological injury arising out of, or in the course of, her employment between 27 August 2021 to 8 November 2021 (s 4), whether employment was a substantial and/or main contributing factor to the injury (depending on its nature) under ss 4(b) and 9A, and, whether a defence was available to the appellant pursuant to s 11A of the 1987 Act. Dr Chris Wood, Executive Director of the appellant, was cross examined on a statement he provided of 31 May 2022.
20. In a Certificate of Determination dated 13 December 2022, Principal Member Bamber held that the respondent had sustained a psychological injury to which employment was both a substantial and main contributing factor. The Principal Member was not satisfied that a defence was available to the appellant pursuant to s 11A of the 1987 Act, and thus, ordered the payment of weekly compensation and medical or related treatment expenses.

THE PRINCIPAL MEMBER’S REASONS

21. In making her decision, the Principal Member considered in some detail the respondent’s statement evidence as to the circumstances leading to her injury. The Principal Member referred to the clinical records of Dr William Nguyen, observing the complex history of pre-existing medical conditions and on-going concerns regarding the COVID-19 vaccination, including psychological symptoms arising from the mandate and her interactions with her employer.^[28]
22. The Principal Member considered the records of Mr Kaushik and the medico-legal opinion of Dr Rastogi. The Principal Member referred to the statement and cross-examination of Dr Paul Wood, Executive Director of the appellant, finding him to be a credible witness. She observed that many of the questions put to him did not have relevance to the case at hand as they referred to teachers, whereas Ms Davis was a support aide. Dr Wood indicated that the Professional and Ethical Standards Group was responsible for disciplinary matters while the Workplace Relations Group was responsible for industrial relations but he could not comment on their decisions. Dr Wood confirmed that individual teachers were able to submit a medical contraindication if they had a medical condition which prevented them from being vaccinated. He noted that a breach of the code of conduct, which outlined the expectations of employees at the Department, could result in disciplinary matters which included non-compliance with the requirements to be double vaccinated by 8 November 2021.
23. The Principal Member referred to Dr Wood’s evidence that the policies and procedures were put in place to support schools at particular points in time, which would change, but they were not given end dates. Decisions were being made and implemented very quickly. She referred to Dr Wood advising that he did not have details of the number of teachers who had complied with the direction for vaccination, but there were high vaccination rates amongst staff, up to 90% with non-compliance being a small number. Dr Wood could not answer why arrangements were not made for unvaccinated staff to work remotely, and advised he was not qualified to answer the question put to him about the difficulty for the appellant to cater for that group to work from home, as this fell to the responsibility of others within the Department. As of May 2022, teachers were being directed to work at schools even if not double vaccinated and “disciplinary proceedings” paused.
24. In submissions to the Principal Member on the issue of injury, the appellant argued that the respondent’s employment was not the main contributing factor to her injury, citing the case of Bjekic v State of NSW (Western Sydney Area Local Health District).^[29] The appellant submitted that the email to the respondent on 27 August 2021 communicating the public health mandate “was not one to which her employment (rather than the public health mandate) was the substantial contributing factor.”
25. The appellant submitted that if the Commission were to find the respondent’s employment to be the main contributing factor to her injury, s 11A(1) of the Act is engaged. The appellant referred to the decision in Northern NSW Local Health Network v Heggie^[30] in which it was found that a broad view of the expression “action with respect to discipline” would be adopted, which includes all aspects of processes related to discipline including investigation. The appellant argued that the email dated 27 August 2021, per Dr Wood’s evidence, was sent with a view to update staff of the planned announcement later that morning by the Premier. The appellant also referred to the decision of ACR v Grace Worldwide^[31] in which the worker, unsuccessfully, argued the employer’s actions were not in connection with the requirements under s 11A of the 1987 Act. In that matter, Deputy President Wood determined that “[t]he cause can be multifactorial, and a predominant cause can consist of numerous events under the umbrella of one of the actions described in s 11A(1) of the 1987 Act”. The appellant asserted that communication sent by the Department was part of a disciplinary process as it used language such as “mandatory” and suggested impacts on either the provision of employment benefits or dismissal.^[32]
26. The appellant referred to Manly Pacific International Hotel Pty Ltd v Doyle^[33] in which it was determined that “business efficiency and convenience” are major factors in management decisions which are similar to the communications sent by it in this case. Further, the appellant asserted that in Glover v Ozcare^[34] and Barber v Goodstart Early Learning^[35] it was found that an employer’s requirement to have its employees vaccinated against influenza was lawful and reasonable per s 387 of the Fair Work Act 2009.^[36]
27. In its reply, counsel for the respondent made reference to her past medical history, the adverse reaction she had to the first dose of the vaccine and feeling discrimination at work during discussion about the mandatory vaccination. The respondent referred to the consultations with Dr Nguyen, her mixed anxiety and depression, the exemption she received from being vaccinated, and the fear of losing her job as reported by Mr Kaushik. The respondent referred to the history of the Public Health Order, and the various correspondence around that time. The Principal Member noted the respondent’s argument that the appellant’s case was deficient as it did not rely on a statement from Ms Scott nor any medical evidence.^[37] In terms of s 11A of the 1987 Act, the respondent submitted that by the time of onset of the psychiatric injury on 20 September 2021 the respondent had not been the subject of any disciplinary action. It was argued that the emails were sent to keep all staff updated, and did not form part of a disciplinary process, as alluded to by Dr Wood.^[38] Nor did the appellant indicate at any point that staff would be dismissed if they failed to receive two doses of the vaccine.^[39]
28. The respondent further submitted that reliance on the principles of “Wednesbury” unreasonableness was “harsh” in the context of s 11A when deciding the reasonableness of an employer’s actions. The respondent argued that the incorporation of these principles is relevant only in matters of an error in law or in the exercise or failure to exercise jurisdiction. The respondent submitted that the appellant’s actions were not in fact reasonable noting that employees were threatened with a finding of “misconduct” should they fail to receive double doses of the vaccine. It was reiterated that the Public Health Order required staff working within a school to be fully vaccinated but the respondent had been successfully working from home since April 2020.^[40]
29. In discussing injury, the Principal Member observed that neither party had specified the nature of the injury as either an injury simpliciter under s 4(a) or a disease injury under s 4(b), but the distinction did not matter, as she was satisfied that employment was both a substantial and the main contributing factor to any aggravation of the respondent’s pre-existing condition.^[41]
30. The Principal Member acknowledged it was an “attractive” argument that the injury arose from Public Health Orders instead of employment, noting the respondent presented with a “flavour of an anti-vaccination type position”. However, such an argument called on the Commission to consider the lay evidence and analyse the cause of a condition without the assistance of an expert such as a psychiatrist to speak to the cause and onset of the respondent’s psychological injury. The Principal Member noted that “[v]arious authorities have remonstrated with decision makers in coming to effectively their own diagnoses”, particularly in complex medical cases such as the present involving a long-standing history of being auto-immune compromised. This is notwithstanding the Commission being a specialist tribunal.^[42] The Principal Member noted that the appellant did not challenge the respondent’s view that the vaccination caused increased blood sugar levels or the rash on her arms. Although the appellant argued these issues were physical, the Principal Member considered them to be a matter for a psychiatrist to consider when forming an opinion on causation. None of these factors were addressed by medical evidence from the appellant and thus there was no assistance for the Principal Member to come to the determination advocated by the appellant.^[43]
31. The Principal Member did not accept that Bjekic was analogous, as it did not deal with the same communications made by the Government or the employer as in the present matter, ultimately deciding it would be unsound to rely on the outcome of that case. The Principal Member then referred to the relevant lines of authority in Smith v Australian Woollen Mills Ltd^[44] and Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited,^[45] which found that the expression ‘arising out of’ does not necessitate direct or physical causation, it is sufficient for the employment to have contributed, “to some material extent” to the injury. In this circumstance, the mandate only affected the respondent as she worked in a school, it was not a mandate to the general population. Accordingly, working in the school meant that “any physiological reaction she had to Government orders” requiring vaccination did arise out of employment.^[46]
32. The Principal Member held that the respondent’s employment was a substantial contributing factor to the injury, referring to s 9A(2)(d) of the 1987 Act and finding that if not for the respondent’s employment and the requirement to be doubly vaccinated as she worked in a school, she would not have sustained the injury.^[47]
33. In also finding that the respondent suffered an aggravation of a disease under s 4(b)(ii), the Principal Member observed that there were no external factors implicated by her doctors as to the cause of her psychological injury, and accepted the medical opinion of Dr Rastogi and Mr Kaushik as to the causes of the respondent’s psychological condition.^[48]
34. In deciding s 11A(1) of the 1987 Act, the Principal Member held that the appellant had failed to discharge its onus of proof by failing produce any medical evidence as to the whole or predominant cause of the injury, with reference to Hamad v Q Catering Limited,^[49] particularly in circumstances such as the present case where there are competing factors as to causation. The Principal Member acknowledged the appellant’s reliance on elements of the opinions of Dr Rastogi and Mr Kaushik to support the submission that the threat to the respondent’s employment was the cause of injury, thus falling within the discipline and dismissal aspects of s 11A; but rejected that this was the “whole” cause of her injury. It was not just the threat of discipline or losing her job, the respondent also felt “discriminated and ostracised” due to being unvaccinated, and there was no evidence to refute that such conversations occurred at school. This was thus a perception of real events.^[50]
35. The Principal Member concluded that as injury had been established, it is for the appellant to refer to evidence in accordance with Hamad as to the extent of the causal contribution of the actions with respect to discipline, dismissal and employment benefits as distinct to the contribution of other work-related factors, including her perception of being discriminated and ostracised. The appellant made submissions as to the reasonableness of its actions implementing the Public Health Order, but despite these steps being reasonable when facing an unprecedented pandemic, in order to successfully rely on s 11A, the Principal Member confirmed that the appellant ought to have established the whole or predominant cause of the respondent’s injury was discipline or dismissal. In failing to do this, there was no requirement for the Principal Member to consider reasonableness.^[51]
36. Accordingly, orders were made in favour of the respondent in the Certificate of Determination issued on 13 December 2022, which records:

“The Commission determines:

1. The [respondent] sustained psychological injury arising out of or in the course of her employment with the [appellant] from 27 August 2021 to 8 November 2021.
2. The [respondent’s] employment with the [appellant] was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease.
3. The [appellant] has not established a defence under s 11A of the Workers Compensation Act 1987.
4. The [appellant] is to pay the [respondent] weekly benefits compensation as follows:

(a) from 9 November 2021 to 7 February 2022 at the rate of $1,121.77 per week pursuant to s 36(1) of the Workers Compensation Act 1987, and

(b) from 8 February 2022 to date and continuing at the rate of $944.65 per week pursuant to s 37(1) of the Workers Compensation Act 1987.

5. The [appellant] is to pay the [respondent’s] treatment expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.”

GROUNDS OF APPEAL

37. The appellant relies on three grounds of appeal. They are:

Ground One – The Principal Member erred when assessing the s 11A defence in failing to conclude that the respondent’s feelings of being discriminated against resulted from the appellant’s reasonable action taken or proposed to be taken in respect of discipline and/or termination of employment.

Ground Two – The Principal Member erred in assessing the s 11A defence in concluding that the respondent’s feelings of being ostracised were of sufficient weight to militate against a finding of injury wholly or predominantly resulting from reasonable [action] taken or proposed to be taken in respect of discipline and/or termination.

Ground Three – The Principal Member erred in assessing the s 11A defence in failing to conclude that the respondent’s feelings of being ostracised resulted from the appellant’s reasonable action taken or proposed to be taken in respect of discipline and/or termination of employment.

ON THE PAPERS

38. Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:

“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

39. Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

40. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

PRELIMINARY ISSUE

41. As is evident from the above background, this is a case about the COVID-19 vaccine mandate in the public school system. Before this case was filed, the Commission had decided another case which was also about a teacher developing a psychological injury following the COVID-19 vaccine mandate being issued in the public school system, Dawking v Secretary, Department of Education.^[52] That case involved the same legal practitioners for both parties as appear in this matter. The non-presidential member’s decision in Dawking was appealed to a Presidential member pursuant s 352 of the 1998 Act, and on 1 May 2023, Deputy President Wood found in favour of the worker.^[53] This decision was appealed to the Court of Appeal. The parties in this appeal agreed for these proceedings to be held in abeyance pending the delivery of the Court of Appeal decision. The Court of Appeal decision was issued on 31 January 2024 in Secretary, Department of Education v Dawking, affirming the determination of Deputy President Wood.^[54] Consequent upon the Court of Appeal decision, the parties in this matter were invited to make submissions about the effect, if any, that the Court of Appeal decision might have upon these proceedings. Submissions were received and the matter was then allocated to me to determine this appeal.
42. Both parties acknowledged that the Court of Appeal decision contained no statement of principle relevant to this appeal, although the respondent did point to how the Court considered the application of s 11A of the 1987 Act.

LEGISLATION

43. Section 11A(1) of the 1987 Act provides:

“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

DISCUSSION

44. The appellant pursues no challenge in relation to the Principal Member’s findings of injury, s 9A and the various monetary awards that were made. Rather, all three grounds of this appeal are complaints about how the Principal Member dealt with the s 11A defence.

Principles on appeal

45. An appeal under s 352 of the 1998 Act is “limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”^[55] This approach has been discussed in Raulston v Toll Pty Ltd.^[56] In terms of this appeal, the comments appearing at [19]–[20] in Raulston have relevance:

“19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant ... :

(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.

(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.

(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.

20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):

‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”

As to Ground One

46. The appellant frames its appeal in this ground in the following way:

“The evaluation of discrimination does not require any assessment or application of questions of perception. The respondent and all other employees without double vaccination were discriminated against by implementation of the Public Health Order. Unless they complied or obtained a medical exemption, they were liable to disciplinary action and/or termination. [Those] were the terms in which the order was expressed and implemented. As Dr [Rastogi] characterised them, the emails from the appellant were coercive. The discrimination experienced by the respondent was a direct result of the actions taken by the appellant in this regard. The fact that they were in respect of discipline or termination were the very features that caused the respondent distress and resulted in her adjustment disorder as found by the Member.

The Member erred in quarantining discrimination from the assessment of whole or predominant cause.”^[57]

47. In response to the entire appeal, the respondent says that the appellant’s failure to adduce any medical evidence is fatal to its appeal, relying on Hamad and Secretary, Department of Education v BB.^[58] The respondent submits that the Principal Member’s conclusions about the medical evidence are findings of fact and the appellant has not shown how they did not have rational support in the evidence.
48. In specific response to this ground, the respondent submits as follows:

“[The appellant’s submission]...suggests that the Worker’s feeling of discrimination must have resulted from the Appellant’s actions taken in respect of discipline and/or termination.

However, the Worker’s evidence (which was unchallenged) (paragraph 35 of her Statement dated 2 February 2022: ARD page 017) referred to a conversation she had with the school principal Carla Scott on 6 September 2021 in which Ms Scott informed the Worker that ‘some colleagues were concerned about their safety working with an unvaccinated staff member’. It was this comment that made the Worker feel that she was being discriminated against.

This comment by Ms Scott was quite unconnected to the actions of the Appellant Employer in respect of discipline and/or termination of employment. If the Appellant Employer wanted to argue that the Worker’s perception was unfounded or that it was connected to the Appellant Employer’s actions regarding discipline and/or termination, it was incumbent upon the Appellant Employer to adduce such evidence, but it did not.”^[59]

Consideration

49. The Principal Member dealt with the s 11A defence at reasons [132]–[140]. Whilst the appellant has not identified any particular section of the decision as revealing the asserted error, a fair reading of the decision would indicate that the impugned aspects can be found at reasons [135], [136] and [139]. I set these paragraphs out in full:

“135. In this case I have found that Ms Davis’s injury arose out of or in the course of her employment, and that employment was the main contributing factor to such injury. While the [appellant] has not produced any medical evidence from an expert it qualified, it does rely upon aspects of the evidence from Dr Rastogi and Mr [Kaushik] that a cause [of] Ms Davis’s psychological injury was the threat to her ongoing employment with the [appellant]. Such a factor comes within ‘discipline’ and ‘dismissal’ aspects of s 11A. However, I find the [appellant] cannot establish this was the ‘whole’ cause of her psychological injury. I have identified above the factors that led to Dr Rastogi’s diagnosis of a psychological injury. I find it was not just the threat of discipline or losing her job that was the whole cause of the psychological injury, she also felt discriminated against and ostracised. Applying Hamad, I find that the [appellant] needed medical evidence dealing with the whole or predominant cause of [Ms Davis’s] psychological injury.

136. Determining the ‘predominant cause’ of Ms Davis’s psychological injury is also fraught given her situation pre-covid of being auto-immune compromised and her worry about being vaccinated. As mentioned above, she also expresses feelings of being discriminated and ostracised in the school due to being unvaccinated. The [appellant] has not called evidence to dispute such conversations occurred. That was her perception of real events.

...

139. Much of the [appellant’s] written and oral submissions are concerned with whether the [appellant’s] actions taken in implementing the public order, including the decision to terminate the employment of persons who elected not to become vaccinated, should be found to have been ‘reasonable’. Even if they were reasonable actions when faced with an unprecedented pandemic, with people dying and the need to protect all staff and children, the [appellant] needs to satisfy both aspects of s 11A for it to successfully rely on it as a defence to compensation being otherwise payable pursuant to s 9 of the 1987 Act. I find it has not established that the whole or predominant cause of Ms Davis’s psychological injury was discipline or dismissal. Certainly the threat to her ongoing employment was part of the factual matrix, but as explained above, relying on the principles expressed in Hamad, I find that the [appellant] has not discharged its onus of proof.”
50. In terms of the evidence on this issue, the respondent said the following when recounting a telephone discussion with the school principal, Ms Carla Scott, on Monday 6 September 2021: “Carla informed me some colleagues were concerned about their safety working with unvaccinated staff member [sic]”. And in the same paragraph: “Carla’s comments in relation to vaccinated staff not wanting to work with unvaccinated staff made me feel I was being discriminated against.”^[60] The respondent’s statement also describes discussions with people who appear to be unrelated to the appellant on the same topic and the respondent’s feelings of generally being discriminated against.^[61]
51. Dr Rastogi in her report dated 14 November 2021^[62] describes in the “diagnosis and opinion” section of her report that the respondent “felt discriminated, ostracised and under duress to receive vaccination ...”.^[63] The doctor then answered Question 5, which she had been asked to answer by the respondent’s solicitor:

“5. Has our client’s employment been a substantial and/or main contributing factor to the injury sustained and/or diagnosed? Please provide reasons for your opinion in that regard.

In the absence of any other non-work stressors, her employment is the main contributing factor to the injury sustained and/or diagnoses. The reasons being coerced and discrimination to receive vaccination as a mandatory requirement and possible threat to her employment with no support provided. Her anxiety has been magnified and deteriorated following adverse reaction to vaccination and being ostracised further with possible termination threat causing vocational jeopardy and displacement.”^[64]

52. I would note that the appellant led no medical evidence, nor did it obtain any statement from Ms Scott about the terms of the 6 September 2021 telephone call, despite flagging calling evidence from the principal in its Reply.^[65]
53. The appellant strongly asserts that the vaccine mandate was in fact discriminatory. The appellant says that the error is in “quarantining” this discrimination from the assessment of whole or predominant cause of the respondent’s injury.
54. I do not think that this description is a fair assessment of the Principal Member’s reasoning when considered as a whole. Earlier in the decision the Principal Member noted that “I find in this matter the cause of Ms Davis’s psychological condition is complex.”^[66] This is undoubtedly correct; the Principal Member described at some length the various matters impacting on the respondent’s psychological condition.^[67] Clearly the vaccine mandate and its effect was part of the complex factual matrix being considered.
55. The Principal Member had to discern from this complexity the factual findings necessary to either accept or reject the appellant’s assertion that it was its action with respect to discipline and/or termination that was the whole or predominant cause of the psychological injury, a requirement of Hamad. The Principal Member found on the facts that this was not established and there was, on the evidence I have outlined above, a proper basis for that finding to be made without error. There was the respondent’s evidence about what the school principal had related to her in the 6 September phone call. This evidence, which was not traversed by the appellant, described statements made to the respondent which could be described as both discriminatory and ostracising. Discriminatory in that the vaccination status of staff created two classes of staff. Ostracising because the class that the respondent belonged to, namely the unvaccinated (2 doses) would be excluded. The same action could produce both results. The Principal Member’s findings had rational support in the evidence. Such findings of fact will not normally be disturbed on appeal.^[68]
56. Error has not been established.
57. Ground One is dismissed.

As to Ground Two

58. In this ground, the appellant challenges the weight given by the Principal Member to the element of ostracism alone, stating that it was insufficient to displace the finding that the injury was wholly or predominantly due to the action with respect to discipline and/or termination.
59. The appellant refers to the respondent’s statement evidence^[69] before going on to deal with Dr Rastogi.^[70] The appellant says that Dr Rastogi uses “the term ostracised in the context of the threat of termination, that is as a consequence of the execution by the appellant of the Public Health Order and the appellant’s policy on vaccination.”^[71] The appellant submits that the Principal Member “misconceived the meaning and significance of the term ostracised as used by Dr [Rastogi].”^[72] The appellant also says that ostracism “even on the respondent’s best case” did not feature as a significant stressor.^[73]
60. As a result of all of this, the appellant submits that “[t]he identification of ostracism as a sufficiently causative factor was not warranted on the evidence.”^[74]
61. In reply, the respondent says that the “conclusion of ‘ostracised’ described by Dr Rastogi and adopted by the Principal Member is an available inference from the evidence of the Worker arising from the Worker’s statement”^[75] which evidence is then set out and which I do not repeat.
62. The respondent asserts that the analysis of Dr Rastogi’s report, set out in the appellant’s submissions at [39]–[48], was not put to the Principal Member and these issues cannot be raised on appeal.^[76]
63. In reply, the appellant says that “the worker’s feelings of ostracism and discrimination were the direct consequence of that action”,^[77] that action being the employer’s action in respect of discipline and/or termination.

Consideration

64. The essence of the Principal Member’s rejection of the appellant’s argument in this ground can be traced to reasons [135]. There the finding was that the appellant “cannot establish this was the ‘whole’ cause of her psychological injury”. The Principal Member goes on to identify that it was not just the threat of discipline and/or termination that caused the psychological injury, but “she also felt discriminated against and ostracised”. The discussion then continues that this “was her perception of real events”,^[78] a finding to which there is no challenge on appeal. This finding was a necessary one in terms of the Principal Member’s discussion of K’s case which immediately follows at reasons [137]. A fair reading of the decision as a whole reveals that the Principal Member was not satisfied that the respondent’s injury was wholly or predominantly caused by the threat of discipline and/or termination. This was based upon the Principal Member’s view about the respondent’s feelings of discrimination and ostracism, although in this ground the appellant concentrates on “ostracism” only. The evidence of ostracism, the appellant contends, is insufficient.
65. I have identified the origin of the evidence about ostracism in the respondent’s statement (above at [55]). This evidence was not questioned by the appellant. In particular, no evidence was led from the appellant’s employee Ms Scott, the other party to the reported telephone conversation. In the appellant’s Reply at page 2, the appellant specifically flagged the potential of calling evidence from the school principal, Ms Scott, in light of the contents of the ARD. I would also note that no issue was taken with the respondent’s evidence on this issue, other than on appeal to say that it was insufficient for the Principal Member to use it to displace what the appellant says was the whole or predominant cause of injury.
66. In considering this complaint, I start with the proposition that weighing the evidence sits within the province of the first instance decision maker. In this case there was unchallenged evidence about ostracism. There was therefore an evidentiary basis for the Principal Member to rely upon. The fact that evidence is unchallenged does not automatically necessitate its acceptance, however, “unless the evidence is shown to be defective in some way, there is usually no reason not to accept evidence that is unchallenged.”^[79] I would remark that the appellant cannot call in aid any submission that the evidence in question was defective, so the Principal Member was right to rely on it.
67. However in terms of this ground, was the evidence of ostracism sufficient?
68. The issue that arises on this point is analogous to that discussed by Heydon J in Strong v Woolworths Ltd.^[80] There his Honour was discussing the application of the rule in Blatch v Archer ^[81] and its application to the circumstances in Strong. His Honour said:

“In the second sense, ‘evidential burden’ refers to circumstances in which a plaintiff calls evidence sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in the plaintiff's favour. There is then said to be an ‘evidential burden’ in the sense of a ‘provisional’ or ‘tactical’ burden on the defendant: if the defendant fails to call any or any weighty evidence, it will run a risk of losing on the issue – that is, a risk that at the end of the trial the trier of fact will draw inferences sufficiently strong to enable the plaintiff to satisfy the legal (ie persuasive) standard of proof. The ‘provisional’ or ‘tactical’ burden raises the question whether a defendant should as a matter of tactics ‘call evidence or take the consequences, which may not necessarily be adverse’.”^[82] (citations omitted)

And:

“The better view is that the ‘evidential burden’ to which Lawton LJ referred [in Ward v Tesco Stores Ltd [1976] 1 WLR 810] was the ‘provisional’ or ‘tactical’ burden of meeting the plaintiff's evidence or facing the possible peril that the trier of fact would draw inferences from it sufficient to satisfy the legal (ie persuasive) burden resting on the plaintiff. This is what Jacobs J was referring to when he said that in some circumstances ‘the plaintiff need only produce slight evidence of negligence before a factual onus may shift to a defendant.’ Dulhunty v J B Young Ltd (1975) 50 ALJR 150 at 151; 7 ALR 409 at 411. That is an ‘evidential burden’ in the second sense discussed above.”^[83]

69. These passages are apt to the circumstances of this case. The appellant did not call evidence to counter the evidence in the respondent’s statement about ostracism. Clearly the appellant was capable of responding to that evidence for the reasons I have described above in terms of Ms Scott’s position. In terms of the contents of the Reply (at page 2) where the appellant indicated a preparedness to call Ms Scott, a reasonable inference is that a decision was made not to do so. As a consequence, the appellant ran the risk that “the trier of fact will draw inferences sufficiently strong” as discussed by Heydon J in Strong, even on evidence which may be considered to be “slight”. This is precisely what happened in this matter.
70. The type of reasoning undertaken by the Principal Member was an evaluative one and of the type discussed by Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd^[84] where the following was said at [28]: “in [the] process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.” This was precisely the task that the Principal Member undertook.
71. I would also make this observation. The Principal Member said that the respondent’s feelings of discrimination and ostracism displaced the argument that the whole and predominant cause of the respondent’s injury was the appellant’s action in respect of discipline and/or termination. It is somewhat artificial to separate discrimination and ostracism as has been done in this appeal ground. Obviously both were weighed by the Principal Member, in circumstances where that evidence was unchallenged by the appellant.
72. Finally, I deal with the appellant’s submissions about Dr Rastogi’s evidence and how it did not support the use to which it was put by the Principal Member. The respondent asserts that this argument was not put in these terms to the Principal Member.
73. I have carefully reviewed the appellant’s written submissions before the Principal Member.^[85] I have also reviewed the transcript of the hearing where the appellant addressed Dr Rastogi’s evidence.^[86] I accept the respondent’s submission that the argument now put about the way to approach Dr Rastogi’s opinion was not put in these terms to the Principal Member. By definition, the Principal Member could not have been in error in failing to deal with an argument that was not put.^[87] The complaint about how the Principal Member dealt with Dr Rastogi’s evidence has no merit.
74. The appellant has failed to establish error. The Principal Member was entitled to consider and weigh the evidence about ostracism in the manner in which she did, especially when the evidence, such as it was, was not challenged.
75. Ground Two is dismissed.

As to Ground Three

76. The appellant asserts the following errors in this ground:

“49. If any perception of ostracism resulted from the receipt of emails on 27 August 2021, it was as a result of reasonable action in respect of discipline and/or termination. If the Member found otherwise she erred.

50. If the ostracism did not result from the events of 27 August, it could not and did not form part of the allegation of injury as notified and claimed and should have been disregarded. If the Member did otherwise she erred.”^[88]
77. The respondent says these arguments are misconceived and relies on its submissions about the appellant’s failure to call evidence.

Consideration

78. The appellant’s submission at paragraph [49], set out above, can be shortly dealt with. For the reasons expressed above with respect to Grounds One and Two, this aspect of Ground Three fails. The element of ‘ostracism’ arose as found by the Principal Member and which has not been disturbed on appeal (see Reasons [135]).
79. However the submission at paragraph [50] raises a question, even though not stated in these terms, as to whether the Commission had the power to hear the application in as much as the respondent relied upon an allegation of ostracism from the events of 27 August 2021 and on the respondent’s case after this date.
80. The Commission’s powers are those conferred on it by the 1998 Act and the 1987 Act and any limitations contained therein. The Commission does not have any inherent jurisdiction. Part 4, Division 1 of the 1998 Act sets out how compensation disputes are dealt with. In short, the effect of these provisions predicates the Commission’s power to decide an application upon there first being a dispute about a claim.
81. In this matter the respondent lodged a document entitled “Report an incident or injury -Injured person lodgement” dated 12 October 2021.^[89] In this document the injury is described thus: “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 27 August 2021 and continuing.” The injury is described as “Psychological/Psychiatric” with particulars describing the injury as “Anxiety, depression and post traumatic stress disorder”.
82. A document described as an “Incident Report Form” appears at ARD, p 84. This is a document of the appellant’s and is dated 18 October 2021. It is not apparent, however, who was the author of the document as it appears to be something completed online. The section entitled “Description of Incident/ Hazard” reads as follows:

“Melissa (SLSO) reports she was working from home reports of feeling bullied.

Melissa states she is feeling very stressed about the vaccine mandate. About being forced to hand her body over to an experimental drug or lose her job.

She has spoke [sic] to her Principal about the matter.

Melissa has also sought medical treatment. She has a mental health care plan and has a CoC for time off stress leave. (starting from 08/10/2021)

Melissa would like it logged as WC for Lost time.

EAP support offered to Melissa.

Principal is aware and Melissa is happy for alternate notification to WPM.”^[90]

The “Nature of Injury/Illness” is later described as a “Psychological Disorder” and its mechanism as being “Exposure to Mental Stress”.^[91]

83. The s 78 notice appears at ARD, p 62. Notwithstanding how the injury had been described over the course of time in the two documents I have just referred to, the s 78 notice fixed the injury in dispute as occurring as a result of events on 27 August 2021. An icare lodgement of injury form appearing at ARD, p 87 clearly stated that the injury commenced on this date and was “continuing”. The Incident Report Form I have referred to above does ascribe a particular date to the injury, 27 August 2021, and records the respondent “feeling bullied” with the mechanism being “Exposure to Mental Stress”. As stated, however, it is unclear who completed this document. In any event the document is of a question and answer type and its limitations in terms of the information set out are self-evident. It is not clear from a reading of the document whether feeling bullied or exposure to mental stress took place on the single day (27 August 2021) or over a longer period as appears in the document at ARD, p 87 which was signed by the respondent.
84. In the ARD the injury is described in the following way, “Date of Injury 27/08/2021 to 8/11/2021” and “Adjustment disorder with exacerbation of anxiety and exacerbation of her underlying autoimmune disorder. 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 the 27/08/2021 to the 08/11/2021”.
85. The Reply filed by the appellant traversed the ARD in the following way:

“The [appellant] relies on the section 78 notice dated 25 October 2021 and confirms the following issues in dispute:

- The [respondent] did not sustain an injury arising out of or in the course of her employment, and employment was not a substantial contributing factor to an alleged injury as required by sections 4, 9A and 11A(3) of the 1987 Act

- Alternatively, any injury alleged to have been sustained by the [respondent] was wholly or predominantly caused by reasonable actions taken or proposed to have been taken by the employer with respect to dismissal, transfer, discipline and/or provision of employment benefits and as such no compensation is payable under section 11A(1) of the 1987 Act

The [appellant] notes the ARD contains evidence not previously served on or available to the [appellant]. The [appellant] provides notice that it intends to seek and rely on further evidence in response to these documents, including statements from relevant witnesses (the Principal of Verona School, the Deputy Secretary) and evidence from the Performance and Ethical Standards unit.

The [appellant] provides notice that it intends to seek leave to issue a Direction for Production on Dr Nguyen to obtain his complete clinical records as unfortunately no response was provided to requests issued in October 2021 and April 2022.”

86. The point taken by the appellant now is that the assertion of ostracism had not been claimed or notified. I would remark that this issue of notification was not argued before the Principal Member. Usually not taking a point before a member at first instance will be fatal to arguing that point on appeal. By definition there can be no error in not dealing with an argument not advanced. But arguments going to jurisdiction are in a different category, if there is no power to entertain an application, or part thereof, the Commission cannot hear the application or the part which is beyond power. The power to decide a controversy, as I have described above, is prescribed by the statute. It is therefore necessary to decide this assertion.
87. In this matter the respondent made a claim for weekly compensation and medical expenses under s 60 of the 1987 Act. The word “claim” as it appears in s 289(1) and (2) of the 1998 Act (dealing with claims for weekly compensation and medical expenses respectively) is defined in s 4 of the 1998 Act as being “a claim for compensation or work injury damages that a person has made or is entitled to make.” “Compensation” is defined in s 4 of the 1998 Act as “under the Workers Compensation Acts, and includes any monetary benefit under those Acts.” The Workers Compensation Acts are defined later in s 4 as being the 1998 and 1987 Acts.
88. In South Western Sydney Area Health Service v Edmonds^[92] McColl JA said at [68]:

“The Deputy President observed (at [11]) ‘that proceedings in the Commission are not governed by ‘formal pleadings’ ... ’. She referred to the decision in Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10 in which she had remarked (at [24]–[25]) that the ‘issues before the Commission could be identified both in the ARD and Reply, as well as during the first telephone conference with the Arbitrator and in the conciliation and arbitration hearing’. She accepted, however (at [12]), that the ‘issues in dispute must be referable to the ‘claim’ that was made by the worker’.”

89. The claim was made by the respondent in the terms I have set out above and responded to by the appellant in the s 78 notice. As I described at [83], the s 78 notice did not accurately respond to the claim, being wider than just the single day. However for the purposes of deciding this issue, the dispute had been framed by the claim and response in terms of the psychological injury suffered by the respondent as a result of the events of 27 August 2021 and on the respondent’s case, what happened thereafter. This was the dispute before the Principal Member.
90. The issue pertaining to ‘ostracism’ is but a particular of how the injury is said to have come about. In Jaffarie v Quality Castings Pty Ltd,^[93] White JA said that “the question of whether a worker has suffered an injury as defined, that is, relevantly, a personal injury arising out of or in the course of employment, is a question to be determined not by an approved medical specialist, but by the Commission.” Now whilst the question being decided by the Principal Member is different to the question that was considered by White JA, the same approach holds true. The respondent had made a claim about psychological injury at work. This was resisted by the appellant in the terms set out above. Ultimately the contest came down to whether the injury was caused wholly or predominantly by the actions of the appellant (for the purposes of s 11A). This was the matter that the Commission was appropriately seized of the power to determine. The issue regarding the contribution of the assertion about ‘ostracism’ is merely a factual element for the Principal Member to decide in terms of the overall dispute as framed by the parties. To hold otherwise would introduce into the process of making a claim and it being disputed before filing in the Commission, a requirement for particularisation approaching the strict pleading rules found in the common law courts. There is no warrant for such a construction arising from Part 4 of the 1998 Act. In any event, I would note that the appellant has advanced no submission to the effect that this is what Part 4 of the 1998 Act requires.
91. I would add that the Commission is not bound by strict pleadings,^[94] and the objects^[95] and the guiding principle^[96] both direct attention to the “just, quick, and cost effective resolution of the real issues in the proceedings”. This is subject always to the observance of procedural fairness.^[97] I would note, as I have stated above, that in the Reply the appellant flagged calling evidence from the school principal in response to the ARD but chose not to do so. No claim about a lack of procedural fairness on the issue of ostracism was made at the hearing.
92. This complaint has not succeeded. Ground Three is dismissed.

NOTICES OF CONTENTION

93. Both parties flagged contentions in their submissions, which essentially deal with the question of the reasonableness of the appellant’s actions. Given how I have disposed of the three appeal grounds, it is not necessary for me to consider either set of contentions.

DECISION

94. The Certificate of Determination dated 13 December 2022 is confirmed.

Judge Phillips

PRESIDENT

25 March 2024

^[1] Section 11A(1) of the 1987 Act.
^[2] Davis v Secretary, Department of Education [2022] NSWPIC 715 (reasons).
^[3] Reasons, [4].
^[4] Application to Resolve a Dispute (ARD), pp 10–27, [11]–[19].
^[5] ARD, pp 90–92.
^[6] ARD, pp 93–94.
^[7] ARD, pp 69–72.
^[8] ARD, pp 97–98.
^[9] ARD, p 99.
^[10] Application to Admit Late Documents (AALD) 15 June 2022, p 78.
^[11] AALD 15 June 2022, p 78.
^[12] Reply to Application to Resolve a Dispute (Reply), p 5.
^[13] ARD, p 101.
^[14] AALD 15 June 2022, p 79; ARD, pp 103‑–104.
^[15] ARD, p 106.
^[16] ARD, p 108.
^[17] ARD, p 111.
^[18] AALD 15 June 2022, p 79.
^[19] ARD, p 48.
^[20] ARD, p 87.
^[21] ARD, p 47.
^[22] Reply, p 30.
^[23] AALD 15 June 2022, p 80.
^[24] ARD, p 62.
^[25] ARD, p 64.
^[26] ARD, pp 57–58.
^[27] ARD, p 3.
^[28] Reasons, [42]–[61]; AALD 15 June 2022, p 59.
^[29] 2022 NSWPIC 214 (Bjekic); reasons, [97]–[101]. Bjekic was confirmed on appeal in Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2023] NSWPICPD 27.
^[30] [2013] NSWCA 225, 12 DDCR 95.
^[31] [2021] NSWPICPD 44.
^[32] Appellant’s submissions 15 June 2022, [26]–[36].
^[33] [1999] NSWCA 465.
^[34] [2021] FWC 2989.
^[35]  [2021] FWC 2156. 
^[36] Appellant’s submissions 15 June 2022, [37]–[43].
^[37] Reasons, [102]–[109].
^[38] Respondent’s submissions 27 June 2022, [22]–[24]; AALD 31 May 2022, p 2.
^[39] Respondent’s submissions 27 June 2022, [25]–[26].
^[40] Respondent’s submissions 27 June 2022, [27]–[35].
^[41] Reasons, [111]–[114].
^[42] Citing Strinic v Singh [2009] NSWCA 15, [58].
^[43] Reasons, [115]–[119].
^[44] [1933] HCA 60; 50 CLR 504.
^[45] [2009] NSWCA 324.
^[46] Reasons, [120]–[125].
^[47] Reasons, [126].
^[48] Reasons, [122]–[131].
^[49] [2017] NSWWCCPD 6 (Hamad).
^[50] Reasons, [135]–[138], citing Attorney General v K [2010] NSWWCCPD 76; 8 DDCR 120 (K’s case).
^[51] Reasons, [139]–[140].
^[52] [2022] NSWPIC 611.
^[53] Secretary, Department of Education v Dawking [2023] NSWPICPD 23.
^[54] [2024] NSWCA 4.
^[55] Section 352(5) of the 1998 Act.
^[56] [2011] NSWWCCPD 25 (Raulston).
^[57] Appellant’s submissions, [24]–[25].
^[58] [2021] NSWPICPD 21, [188].
^[59] Respondent’s submissions, [9]–[11].
^[60] ARD, p 35, [41].
^[61] ARD, p 36, [46]–[47].
^[62] ARD, pp 3‑–9.
^[63] ARD, p 7.
^[64] ARD, p 8.
^[65] Reply to Application to Resolve a Dispute (Reply), p 2 of 5, “Matters in Dispute”.
^[66] Reasons, [117].
^[67] See reasons [14] and following; the sections entitled “Dr Nguyen” from [42]; “Anil Kaushik” from [67] and “Dr Rastogi” from [68].
^[68] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
^[69] Appellant’s submissions, [28]–[38].
^[70] Appellant’s submissions, [39]–[44].
^[71] Appellant’s submissions, [44].
^[72] Appellant’s submissions, [47].
^[73] Appellant’s submissions, [46].
^[74] Appellant’s submissions, [48].
^[75] Respondent’s submissions, [17], referring to ARD, pp 15–19.
^[76] Respondent’s submissions, [20].
^[77] Appellant’s submissions in reply, [3].
^[78] Reasons, [135]–[136].
^[79] Hamod v State of New South Wales [2011] NSWCA 375, [338].
^[80] [2012] HCA 5; 246 CLR 182 (Strong).
^[81] [1774] EngR 2; (1774) 1 Cowp 63, 65; [1774] EngR 2; [98 ER 969, 970].
^[82] Strong, [53].
^[83] Strong, [60].
^[84] [2001] FCA 1833.
^[85] Appellant’s written submissions dated 15 June 2022.
^[86] Transcript of proceedings (T), 29 August 2022, T 48.22–49.5.
^[87] Brambles Industries Limited v Bell [2010] NSWCA 162, [30].
^[88] Appellant’s submissions, [49]–[50].
^[89] ARD, pp 87–89.
^[90] ARD, p 84.
^[91] ARD, p 86.
^[92] [2007] NSWCA 16 (Edmonds).
^[93] [2018] NSWCA 88, [67].
^[94] Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2, [41].
^[95] Section 3(c) of the 2020 Act.
^[96] Section 42 of the 2020 Act.
^[97] Edmonds, [90]–[91], [95].