Secretary, Department of Education v Dawking [2023] NSWPICPD 23 (1 May 2023)

Last Updated: 8 May 2023

INTRODUCTION AND BACKGROUND

1. Ms Diane Dawking (the respondent) was employed by the Secretary, Department of Education (the appellant) for a period of 17 years. At the time relevant to this matter, the respondent was employed as a full-time special education teacher.
2. On 27 August 2021, the appellant notified its staff (including the respondent) that a COVID‑19 Public Health Order was to be issued by the Premier of New South Wales on that day, which would require all staff to receive two doses of the vaccine (that is, be “doubly vaccinated”) within a prescribed time. The “Public Health Order (COVID-19 Vaccination of Education and Care Workers)” (the Public Health Order), was issued on 23 September 2021, requiring education and care workers to be doubly vaccinated by 8 November 2021, or sooner if attending school grounds. The respondent made a decision to refrain from being vaccinated. The appellant subsequently wrote to the respondent, advising that the respondent was required to be doubly vaccinated or she would be considered guilty of misconduct, she would face disciplinary action, and her employment may be terminated.
3. The respondent claimed workers compensation, alleging that as a result of the vaccine mandate and her decision not to be fully vaccinated, she experienced psychological symptoms, rendering her totally unfit for work from 27 August 2021.
4. The appellant denied liability, asserting that:
   

   (a) the respondent had not suffered a psychological injury arising out of or in the course of her employment (s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act));(b) the respondent did not suffer an injury in the course of or arising out of her employment (s 4 of the 1987 Act);

   (c) the respondent’s employment was not a substantial contributing factor to any injury (s 9A of the 1987 Act), and

   (d) any injury was wholly or predominantly caused by reasonable action taken by the appellant in respect of the actions identified in s 11A of the 1987 Act.^[1]

5. The matter came to arbitration before a general member of the Commission. The Member determined that the respondent had suffered a psychological injury to which the respondent’s employment was the main contributing factor, and the appellant’s actions were not reasonable. He awarded the respondent weekly payments of compensation and treatment expenses.

ON THE PAPERS

6. Section 52(3) of the  Personal Injury Commission Act 2020  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.”

7. The appellant requests an oral hearing. The only reason put forward by the appellant is that an oral hearing will give the parties the opportunity to address the Commission in relation to
   “any further developments” in Bjekic v State of New South Wales,^[2] another decision on appeal to a Presidential Member. In the present matter, the appellant made submissions to the Member that the decision by Member Wynyard in Bjekic was “a particularly analogous recent authority”. The Member did not adopt Member Wynyard’s reasoning or Member Wynyard’s ultimate conclusion that the injured worker’s employment was not a substantial contributing factor or the main contributing factor to his injury.
8. In these proceedings, the appellant asserts that the Member was required to determine whether he considered the decision in Bjekic to be wrong. The respondent counters that assertion with submissions that it was never asserted by either party that the decision in Bjekic was wrong. In reply, the appellant did not assert otherwise.
9. For the reasons set out below in my consideration of this appeal, the Member was not required to follow Bjekic. In the absence of a live issue before the Member as to the correctness of the decision in Bjekic, the Member was not required to consider whether, in his view, Bjekic was “plainly wrong.” I cannot see how a result on appeal in Bjekic, a matter which turned on its own facts, could have any influence in the assessment of whether the Member in this case committed errors of the kind referred to in s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and discussed in the relevant authorities.
10. I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 –Presidential appeals and questions of law, and the documents and submissions that are before me. 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

11. 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.

THE EVIDENCE

The respondent’s lay evidence

12. The respondent provided statements dated 15 October 2021 and 24 March 2022, and a four-page undated email detailing her complaints.
13. In her first statement,^[3] the respondent provided details of her educational history and professional development. She stated that she became aware of what she termed “the Public Health Order 2021 (COVID-19 Vaccination of Workers)” which imposed mandatory vaccinations for health care workers and workers who were employed in health settings. The respondent also referred to the further Public Health Order 2021 issued by the Minister in respect of “COVID-19 Vaccination of Education and Care Workers”, which required such workers (including teachers) to be doubly vaccinated by 8 November 2021, or earlier if attending school grounds. The respondent noted that an exemption was available to a worker who was unable to be vaccinated if it was medically contraindicated.
14. The respondent stated that, as a result of the vaccination mandate and her decision not to be vaccinated, she developed a plethora of psychological symptoms, including loss of interest in daily activities, appetite and weight changes, interference with sleep, anger, irritability, loss of concentration, low mood, anti-social behaviour, as well as physical aches and pains.
15. The respondent indicated that she believed that the mandatory vaccination order impinged upon her rights and liberties, particularly her “fundamental” right to work. She asserted that it was accepted that for the majority of Australians, vaccination should be voluntary. She referred to the Prime Minister’s media conference on 21 July 2021 to that effect. The respondent explained the reasons why she had chosen not to be vaccinated and why she believed that she could satisfy the appellant that she did not have COVID-19 by providing a negative rapid antigen or similar test. She complained that the New South Wales Government and the appellant’s actions of “mandatory eviction” from her job had affected her mental health. The respondent asserted that, as a result of her psychological condition, she had no capacity for work.
16. In the undated four-page email,^[4] the respondent again expressed her views against mandatory vaccination and listed the psychological and physical symptoms she attributed to the appellant’s actions.
17. In her statement dated 24 March 2022,^[5] the respondent referred to the Public Health Order issued on 23 September 2021. She said that it directed that she could not carry out “relevant work” on school grounds and did not provide that her employment should be jeopardised. She added that she had a long history of employment in which her conduct was exemplary, so that the allegations of misconduct caused her to suffer the psychological injury.
18. The respondent also referred to the New South Wales Government’s declaration that when double vaccination had reached 95%, or by 15 December 2021, restrictions would ease. She remarked that the rules had dramatically changed since the 2021 Public Health Order. The respondent referred to the Department of Education Guidelines in relation to serious allegations of misconduct. She advised that those Guidelines say that the appellant may exercise its discretion in determining what actions it should take in such matters. She suggested alternative methods to protect the health of staff and students, such as wearing protective clothing, rapid antigen testing and social distancing. She also suggested that alternative work arrangements could have been put in place, including working from home (as she had done for two years prior to 8 September 2021), rapid antigen testing or working remotely.
19. The respondent indicated that there was a total of 54,502 full time teachers employed by the appellant and only a small number who chose not to be vaccinated. She asserted that the appellant could easily have provided alternate duties for her, such as teaching by way of Zoom. She reiterated that she had never been the subject of prior misconduct allegations.
20. The respondent referred to the escalating case numbers in 2022 and remarked that the real risk to the spread of COVID-19 in schools was the students’ return to the classroom. She asserted that there had been no reported cases of a student being infected with COVID-19 by a teacher taking appropriate safety measures, and she was prepared to undertake those safety measures.

The appellant’s lay evidence

Statement of Dr Paul Wood

21. The appellant relied upon a statement from Dr Paul Wood, the appellant’s Executive Director, Educational Standards, dated 31 May 2022.^[6] He stated that from July 2021 to February 2022, he was the Executive Director of the appellant’s COVID-19 taskforce.
22. Dr Wood said that the New South Wales Government and the New South Wales Minister for Health announced on 27 August 2021 that COVID-19 vaccinations were mandated for education workers, requiring all education workers to be fully vaccinated by 8 November 2021. Dr Wood said that on the morning of 27 August 2021, the appellant sent an email to all “school based” staff, advising that it was the New South Wales Government’s intention to issue a COVID-19 mandate at 11 am. He said that the purpose of the email was to keep the staff informed of the rapidly developing public health situation. Dr Wood provided a copy of the email^[7] and a copy of the appellant’s COVID-19 vaccination “Frequently Asked Questions” intranet page,^[8] which included information on the process to be followed if a member of staff required an exemption or was unwilling to be vaccinated.
23. Dr Wood advised that the Minister for Health issued the Public Health (COVID-19 Vaccination of Education and Care Workers) Order on 23 September 2021, a copy of which was annexed to his statement.^[9] He said that the Order “gave effect to the vaccination mandate first announced by the NSW Government on 27 August 2021.”^[10]
24. Dr Wood further advised that on 18 October 2021, the appellant issued determinations pursuant to the Education (School Administrative and Support Staff) Act 1987 and the Teaching Service Act 1980, copies of which were also annexed to his statement.^[11] He said:

“These determinations established the requirement that employees of the Department must be vaccinated with two doses of a COVID-19 vaccine and provide evidence of that vaccination unless they are unable to be vaccinated because of a medical contraindication, as a condition of their employment with the Department.”^[12]

25. Dr Wood referred to other communications sent by the appellant which were also annexed to his statement, namely:
    

    (a) an email dated 2 September 2021 directed to school based staff providing an update of mandatory vaccinations and information about accessing priority vaccinations, with access to the appellant’s intranet page;^[13](b) COVID-19 Vaccination Guidelines introduced by the appellant on 5 October 2021, including medical exemption guides;^[14]

    (c) a fact sheet for Principals and Managers issued on 22 October 2021,^[15] and

    (d) a direction issued on 22 October 2021 to employees who had yet to update their vaccination status, in which employees were informed that a failure to comply with the direction would result in disciplinary action.^[16]

26. Dr Wood further referred to an email from the appellant dated 1 November 2021,^[17] directed to the appellant’s employees reminding them that they were to update their vaccination status and advising them that a failure to comply with the directive would result in disciplinary action. Dr Wood said that, on 12 November 2021, the appellant introduced the policy that applied to managing non-compliance with the vaccination requirements.^[18] He explained that, following the effective date of the mandate, those employees who were non-compliant were referred to the Professional Ethical Standards Directorate, who would deal with each case individually, based on their circumstances.

Dr Paul Wood’s oral evidence

27. The respondent lodged an Application to Admit Late Documents (AALD) dated 4 October 2022, attaching the transcript of proceedings recorded in Davis v Secretary, Department of Education,^[19] a matter involving similar facts to this case, that had proceeded to arbitration before a different member of the Commission. The transcript was relevant to these proceedings because in Davis, Dr Wood had been called to give oral evidence further to that provided in his statement dated 31 May 2022. Dr Wood gave the following evidence:
    

    (a) the email sent on 27 August 2021 was intended to apply to all school staff;(b) not all teaching staff are school based;

    (c) the Public Health Order issued in relation to Education and Care workers required those workers to be fully vaccinated if working in schools;

    (d) the appellant required all of its employees to be fully vaccinated;

    (e) questions about the disciplinary process were outside of his expertise and Mr Daryl Currie, the appellant’s Executive Director of Professional and Ethical Standards Directorate, was still employed by the appellant and was the person with that expertise;

    (f) there was no other basis to apply for an exemption from vaccination other than where the vaccination was medically contraindicated;

    (g) if a teacher’s employment was terminated for disciplinary reasons, that would remain on the teacher’s record;

    (h) the actual number of staff who were non-compliant in relation to the vaccine mandate was very small, probably several hundreds of members of staff;

    (i) a decision to allow a teacher to work remotely was not within Dr Wood’s authority;

    (j) there were areas other than teaching where qualified staff could work remotely, such as curriculum development, but they were required to be fully vaccinated, and

    (k) from May 2022, teachers were directed to return to schools even though they were not fully vaccinated.

Documentary evidence

The appellant’s email dated 27 August 2021

28. The appellant’s email dated 27 August 2021^[20] was directed to “all school-based staff” and relevantly advised that, in order to “allow for a safe return to face-to-face learning under the roadmap, NSW Health has advised that by 8 November all NSW public school and preschool staff will be required to be fully vaccinated.” The appellant also advised that “today the Premier is expected to announce that – as with the aged care and health sectors – mandatory double doses of vaccinations will be required for all public school and preschool staff from 8 November.”

The Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021

29. The Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021, was issued on 23 September 2021.^[21] The Order declared that:

“4 Education and care workers must be vaccinated

(1) The Minister directs that an education and care worker must not carry out relevant work on or after 8 November 2021 unless the worker has—

(a) had 2 doses of a COVID-19 vaccine, or(b) been issued with a medical contraindication certificate.

(2) The Minister directs that an education and care worker must provide the worker’s vaccination evidence if requested by—

(a) a responsible person, or(b) a person authorised by a responsible person.

(3) The Minister directs that each responsible person for an education and care worker must take all reasonable steps to ensure that the education and care worker complies with the directions of this clause.”^[22]

30. The phrase “relevant work” was defined in cl 2 of the Order as:
    

    (a) work at a government or non-government school;(b) work at an early education and care facility;

    (c) providing a disability support service in person to a child with a disability at a government school, non-government school or early education and care facility;

    (d) work as an authorised person in relation to the registration of children for home schooling;

    (e) work at a Higher School Certificate public examination, and

    (f) other work specified by the Chief Health Officer as relevant work for the purpose of the Order.

The appellant’s COVID-19 Vaccination Information sheet

31. Following the publication of the above Order, the appellant issued a revised Vaccination Information sheet on 24 September 2021, setting out the process and requirements for vaccination.^[23]
32. Relevantly, the document advised that all people employed in “relevant work” must be fully vaccinated by 8 November 2021. It said that:
    

    (a) in addition to school staff, the appellant strongly recommended all supporting and corporate staff to be vaccinated as soon as possible;(b) the only exemption from the mandate was where vaccination was medically contraindicated;

    (c) it was expected that all staff who could safely be vaccinated do so;

    (d) the appellant had the power to direct its employees to be vaccinated, provided the direction is lawful, reasonable, and within the subject matter of the employee’s employment;

    (e) if a staff member who does not have an exemption refuses vaccination, the principal was required to report the staff member and consider whether the staff member’s duties could be performed at home or whether the staff member had leave available, and

    (f) the appellant would take appropriate action in situations where staff refused to comply, which could result in termination of the staff member’s employment.

The appellant’s COVID-19 Vaccination Guidelines

33. The appellant’s COVID-19 Vaccination Guidelines (the Guidelines) dated 5 October 2021^[24] relevantly provided that:

“To meet the requirements of the [Public Health Order] by 8 November all staff must provide evidence that they are fully vaccinated.”^[25]

“There are no special leave provisions available to those who refuse to comply with these guidelines.”^[26]

If staff are found to be, or suspected of being, in breach of the Public Health Order NSW Police will be called and infringement notices or criminal charges may be laid.”^[27]

“If staff are found to be, or suspected of being, in breach of these guidelines, then investigation and disciplinary action may be undertaken by the department, including termination of employment.”^[28]

Determination under the Teaching Service Act 1980

34. Pursuant to the Teaching Service Act 1980, on 18 October 2021, the Secretary of the Department of Education issued a determination, in which she determined that:

“1 Purpose

1.1 The purpose of this Determination is to establish the requirement that employees of the Department must be vaccinated with two doses of a COVID-19 vaccine and provide evidence of that vaccination unless they are unable to be vaccinated because of a medical contraindication, as a condition of their employment with the Department.

2. Application

2.1 This Determination will apply to all employees of the Department employed in the Teaching Service.

…

4. Scope

4.1 It is a condition of employment in the Teaching Service that an employee must provide, to the responsible person for their ordinary place of work, either:

(a) vaccination evidence; or(b) if the employee is unable to be vaccinated against COVID-19 because of a medical contraindication, a medical contraindication certificate.”^[29]

The medical evidence

Certificates of Capacity

35. A number of Certificates of Capacity were in evidence, commencing from 12 October 2021.^[30] The first certificate was issued by Mr Muhamad Ziedni, clinical psychologist, which recorded that the respondent had no capacity for work from 9 September 2021 and the:

“Client suffers from acute stress reactions/disorder in relation to the current COVID-19 restriction and mandatory vaccination commencing on 27/08/2021 and continuing.”^[31]

36. The remaining certificates were issued by Dr Leslie Vago, general practitioner, between 30 October 2021 and 3 May 2022. The date of injury was nominated as 27 August 2021 and the injury was diagnosed as an “acute stress reaction/disorder.” Dr Vago certified that the respondent had no capacity for work up to 9 June 2022.

Dr Richa Rastogi, psychiatrist

37. Dr Richa Rastogi examined the respondent and provided a report dated 23 December 2021 at the request of the respondent’s legal representatives.^[32] Dr Rastogi noted that the respondent had not worked since 6 September 2021 and had taken long service leave. She further noted that the respondent had applied for leave without pay for the following year and was certified unfit to work.
38. Dr Rastogi reported that the respondent suffered from anaemia and other medical conditions and was fearful of having the COVID-19 vaccine because she believed it would compromise her underlying medical condition. Dr Rastogi took the history that the Public Health Order made on 26 August 2021 mandating vaccination was issued suddenly and was followed by intense daily emails from the appellant (including from the respondent’s principal) coercing teachers to be vaccinated. She noted that the emails required updates on the teachers’ vaccination status, set short time frames to comply with the mandate and made threats of not being allowed on site.
39. Dr Rastogi recorded that, up until this time the respondent felt valued as a teacher, but those actions made her feel worthless and made her feel her integrity was challenged. Dr Rastogi identified the respondent’s current complaints of symptoms and recorded that the respondent felt anxious, ostracised, depressed, and apprehensive, was overwhelmed and concerned about her future. She noted that the respondent was receiving psychological intervention on a weekly basis.
40. Dr Rastogi opined that the respondent was:

“… a high functioning person who took pride in her job and her self-worth and self-esteem was enmeshed with her job.

She developed heightened anxiety with adjustment disorder following coercive emails doing [sic, during] COVID pandemic to receive vaccination with mandate enforced that she was concerned given her medical condition and uncertainty causing career threats and uncertainty. She felt discriminated, ostracised and under duress to receive vaccination and stated that her integrity has been questioned. She developed anxiety disorder with avoidance, social scrutiny, excessive fears and poor stress coping associated with coercion, feeling betrayed and ostracised and victimised at work due to a vaccine mandate.”^[33]

41. Dr Rastogi diagnosed the respondent as suffering an adjustment disorder with anxiety. She considered that, in the absence of any other non-work related stressors, the respondent’s employment was the main contributing factor to her injury. Dr Rastogi was of the view that the respondent’s injury was not wholly or predominantly caused by the appellant’s actions in respect of promotion, appraisal, discipline, or dismissal. Dr Rastogi certified that the respondent was unfit for work.

THE MEMBER’S REASONS

42. The Member provided a chronological background of the issuing of the Public Heath Orders and the various emails sent by the appellant to its staff between 27 August 2021 and 18 October 2021 and summarised the content of those documents. He noted that the Public Health Order required “certain education … workers to be vaccinated against COVID-19” and:

“the Minister directed that education and care workers must not carry out relevant work on or after 8 November 2021 unless the worker had:

(a) two doses of a COVID-19 vaccine, or(b) been issued with a medical contraindication certificate.

‘relevant work’ was defined in the Public Health Order as ‘work at a government school or non-government school’.”^[34]

43. The Member noted that the respondent claimed that, as a result of the vaccination mandate, she began to suffer numerous psychological symptoms, prompting her to consult Mr Muhamad Ziedni, psychologist. The Member referred to the appellant’s determination issued on 18 October 2021, which required all employees, as a condition of their employment, to have had two COVID-19 vaccinations and provide evidence of those vaccinations, except if the vaccination was medically contraindicated. The Member quoted from cl 4.1 to cl 4.3 of the determination.
44. The Member observed that the respondent reported her injury on 19 October 2021 and that the appellant denied liability for the claim. He identified the issues raised by the appellant.
45. The Member summarised the contents of the email sent to the respondent on 14 February 2022, in which she was advised that if she did not comply with the direction to produce either a vaccination certificate or a medical certificate indicating that vaccination was contraindicated, the respondent could be subject to disciplinary action including termination of employment. He summarised the medical and lay evidence, including the history recorded, and the opinion provided by Dr Rastogi, as well as the oral evidence given by Dr Wood in Davis. He noted that Dr Wood:
    

    (a) was unable to explain why no special leave provisions were made available to those who did not comply with the vaccination mandate, and suggested the question be directed to the appellant’s “People Group”;(b) nominated other groups in the organisation that were responsible for disciplinary matters and industrial relations, nominating Mr Currie as the Executive Director in the disciplinary area who was the appropriate person to answer questions about the management of conduct;

    (c) said that the appellant’s policy would apply to all teachers, and the only exemption was where the vaccine was contraindicated;

    (d) said the extent of the disciplinary action was dependent upon the nature of the breach and the disciplinary breach would remain on the teacher’s record, and

    (e) could not provide answers to numerous questions put to him because he was not the appropriate person to answer those questions.

46. The Member reviewed the parties’ submissions in detail.
47. The Member proceeded to determine the question of whether the respondent suffered an injury. He noted the evidence adduced from Dr Rastogi, and the evidence contained in the Certificates of Capacity as to the diagnosis and cause of the injury, as well as the respondent’s evidence as to the onset of the psychological symptoms. He commented that the appellant had not produced any medical evidence, either in respect of the question of injury or the issues pertaining to s 11A of the 1987 Act. He concluded that, based upon the medical evidence, he was satisfied that the respondent suffered a psychological injury arising out of or in the course of her employment, which commenced when the respondent received the email from the appellant dated 27 August 2021. He described the injury as having significantly impacted the respondent’s psyche, which caused the respondent to consult her general practitioner and a psychologist. The Member considered that the respondent’s reaction to the email was in part related to her being a high functioning person who took pride in her work and her feelings of self-worth and self-esteem were “enmeshed” with her job, as Dr Rastogi had expressed.
48. Noting that the appellant had raised the issue pertaining to whether the respondent’s employment was a substantial contributing factor to her injury pursuant to s 9A of the 1987 Act, the Member referred to factors described in s 9A(2) of the 1987 Act and said that, when considering those matters, it was clear that the respondent’s employment was a substantial contributing factor to the injury, and found accordingly. He accepted the respondent’s submission that there was no material evidence that the employment was anything other than a substantial, and in fact main, contributing factor to the respondent’s psychological injury. He referred to Dr Rastogi’s evidence that the respondent suffered from anaemia, had a fragile mental state and had a past history of an adjustment disorder associated with a work related back injury. The Member also noted that the respondent’s husband was unwell.
49. The Member considered that there was insufficient evidence to suggest that the injury suffered by the respondent was an aggravation, acceleration, exacerbation or deterioration of a disease that was the main contributing factor to the injury, in accordance with s 4(b)(ii) of the 1987 Act. The Member further accepted that the respondent’s employment was the main contributing factor to the contraction of a disease within the meaning of s 4(b)(i) of the 1987 Act.
50. The Member turned to the question of whether s 11A of the 1987 Act was satisfied. He quoted from the decision of Snell DP in Hamad v Q Catering Limited,^[35] in which the Deputy President indicated that:
    

    (a) there may be cases where psychological injury can be established without the need for medical evidence;(b) the need for such evidence will depend upon each case, and

    (c) where there are a number of causative factors, medical evidence is required to ascertain what was the whole or predominant cause of the injury.

51. The Member observed that the appellant had not adduced any medical evidence to establish that the actions it took with respect to discipline were the whole or predominant cause of the injury. He further observed that Dr Rastogi had opined to the contrary, although the Member accepted that the opinion was “very bland.” He said that the fact was that there was no evidence to the contrary of that view and the respondent was so affected by the contents of the email dated 27 August 2021 that she ceased work on 6 September 2021 and claimed compensation on 7 September 2021. The Member concluded that there was insufficient evidence to establish that the respondent’s injury was caused by action the appellant took with respect to discipline.
52. The Member proceeded to consider whether the appellant’s action was reasonable, in the event that he was wrong in respect of the findings already made in relation to s 11A. He identified the action relied upon by the appellant was “discipline”, which commenced on 27 August 2021, just eight minutes before the Public Health Order relating to health employees was issued by the Premier of New South Wales. The Member remarked that there was no evidence of the Premier’s announcement and the respondent simply said that she had “become aware” of the Public Health Order on 27 August 2021. The Member said that the cessation of the respondent’s employment on 8 November 2021 would appear to have been the culmination of the disciplinary action taken by the appellant.
53. The Member observed that it subsequently became apparent that the information conveyed in the email dated 27 August 2021 was erroneous in that it said that the Premier’s announcement would be that two doses of the vaccination would be required for all public school and preschool staff from November. The Member referred to the respondent’s submission that it was not the Public Health Order that was the issue, it was the way in which it was implemented by the appellant. The Member considered that that submission was correct. The Member pointed to the definition of “relevant work” contained in the Public Health Order issued on 23 September 2021, which was defined as “work at a government school or non-government school.” He observed that the email required all staff to be fully vaccinated and took no account of teachers who may not have been at schools.
54. The Member noted the respondent’s submission that the appellant failed to give consideration to:
    

    (a) the respondent working remotely and still teaching students at school;(b) redeploying teachers to other roles such as curriculum or policy development;

    (c) the fact that the pandemic would not last indefinitely, so that suspension of employment, rather than cessation, was an option;

    (d) given that the restrictions eased in December 2021, the long-term impact of a disciplinary issue recorded on a teacher’s record;

    (e) the denial of special leave provisions for unvaccinated teachers, and

    (f) the only alternative to vaccination was to provide a medical certification that the vaccine was contraindicated.

55. The Member pointed out that there were very few teachers who were not fully vaccinated. The Member referred to the evidence of Dr Wood, who was not able to explain why no special leave was made available, and who deferred to other groups in the appellant’s organisation who were responsible for disciplinary matters and industrial relations. The Member added that Dr Wood said that allowing teachers to work remotely was not a decision within his authority and could not answer why employees working in areas such as curriculum development were required to be fully vaccinated, even if they were working from home.
56. The Member accepted the respondent’s submission that a Jones v Dunkel inference should be drawn in respect of the failure by the appellant to call Mr Currie to explain the reasons for the disciplinary process adopted in respect of the respondent, in circumstances where an explanation was necessary. The Member said that the inference drawn was that the evidence of Mr Currie would not have assisted the appellant.
57. The Member described the threat of calling the police where there was a breach of the Public Health Order and of disciplinary action as “draconian”, where the employees were suddenly faced with the pandemic, with serious consequences to their livelihood.
58. The Member concluded that:

“I do have regard to the fact that the [appellant] was dealing with a very serious threat to the health of a large number of its employees and students in the context of a worldwide pandemic, the scale of which had not apparently occurred for over a century. There was no evidence to this effect in the proceedings, and no submissions were forthcoming from the parties as to the seriousness and scope of the pandemic, but I think that I can take notice of it. Dr Wood did give evidence that the Department was dealing with a serious and rapidly evolving situation when explaining why the email of 27 August 2021 was issued. However, the onus is on the [appellant], and for the reasons I have outlined above, I find that the actions taken by the [appellant] with respect to discipline were not, in the circumstances of this case, reasonable.”^[36]

59. The Member proceeded to determine the respondent’s entitlement to weekly compensation and treatment expenses. There is no issue on appeal in respect of the Member’s findings on those matters. The Certificate of Determination issued on 3 November 2022 records:

“The Commission determines:

1. The [respondent] sustained psychological injury on 27 August 2021 arising out of or in the course of her employment with the [appellant].
2. The [respondent’s] employment with the [appellant] was the main contributing factor to injury.
3. The injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the [appellant] in respect of discipline.
4. The [respondent] has had no current work capacity for any employment since 7 September 2021.
5. The [appellant] is to pay the [respondent] weekly benefits compensation as follows:
   

   (a) $1,722.60 per week from 7 September 2021 to 6 December 2021 pursuant to s 36(1) of the Workers Compensation Act 1987, and(b) $1,378.10 per week from 7 December 2021 to date and continuing pursuant to s 37(1) of the Workers Compensation Act 1987.

6. The [appellant] is to pay the [respondent’s] costs and expenses pursuant to s 60 of the Workers Compensation Act 1987.”

GROUNDS OF APPEAL

60. The appellant brings the following grounds of appeal:
    

    (a) Ground One: The Member failed to consider an argument made squarely by the appellant that the approach taken by Member Wynyard in Bjekic was correct and ought to have been followed;(b) Ground Two: The Member failed to give adequate reasons:

    (a) as to the correctness and/or applicability of Bjekic, and/or(b) for finding that the respondent’s employment was a substantial contributing factor to her injury and the main contributing factor to the contraction of a disease, and

    (c) Ground Three: The Member erred in finding that the respondent’s employment was a substantial contributing factor to the injury and the main contributing factor to the contraction of a disease.

LEGISLATION

61. Section 4 of the 1987 Act relevantly provides:

“Definition of ‘injury’ (cf former s 6 (1))

In this Act:

injury

(a) means  personal injury  arising out of or in the course of employment,(b) includes a disease injury, which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”.

62. Section 9A of the 1987 Act relevantly provides:

“No compensation payable unless employment substantial contributing factor to injury

(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.

Note— In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.

(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

(a) the time and place of the injury,(b) the nature of the work performed and the particular tasks of that work,

(c) the duration of the employment,

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

(e) the worker’s state of health before the injury and the existence of any hereditary risks,

(f) the worker’s lifestyle and his or her activities outside the workplace.

(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4) …”.

63. Section 11A of the 1987 Act relevantly provides:

“11A No compensation for psychological injury caused by reasonable actions of employer

(1) 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.

(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.

(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.

(5) (Repealed)

(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.

This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).

(7) …

(8) … ”.

SUBMISSIONS

64. The appellant submits that each ground of appeal concerns the Member’s failure to adopt the approach taken by Member Wynyard in Bjekic, which was a central argument put to the Member in its submissions.

As to Ground One

The appellant’s submissions

65. The appellant points out that the Member did not make a finding that the determination in Bjekic was plainly wrong.
66. The appellant asserts that the approach taken in Bjekic, if adopted, could have had a different outcome. The appellant refers to the acceptance by Member Wynyard that it was the government actions, rather than the employer’s actions, that were causative of Mr Bjekic’s injury. The appellant points to Member Wynyard’s reasoning that the employment had not been injurious prior to the health orders being made, therefore the substantial contributing factor to the injury was the effect of those orders. The appellant submits that the Member in these proceedings ought to have followed Bjekic as a matter of comity, unless he considered the decision in Bjekic to be plainly wrong, or distinguishable.
67. The appellant says that its primary submission in both its submissions at arbitration on 12 October 2022 and in writing on 19 October 2022 was that the decision in Bjekic should have been followed because it was “particularly analogous recent authority.”^[37] The appellant says that it submitted further that the respondent’s employment was not a substantial contributing factor to any injury suffered by the respondent as a result of the email passing on the public health direction. The appellant says that this submission is relevant to both Ground One and Ground Two (a) of the appeal.
68. The appellant asserts that the Member failed to address those submissions and thereby erred in law or in the exercise of his discretion. The appellant submits that the Member’s only reference to the submissions was at [68] of his reasons, which was merely a summary of the respondent’s submission that the decision was factually distinguishable.
69. The appellant submits that it is appropriate for the Commission to apply the principles of comity, and asserts that, had the Member done so when assessing causation, it was clearly open to him to find that:
    

    (a) the nature of the respondent’s employment was not injurious prior to 27 August 2021;(b) on 27 August 2021, the New South Wales Government made a decision to impose a mandatory requirement that staff “working at public schools (among other places)” be vaccinated twice with a COVID-19 vaccine by 8 November 2021;

    (c) the respondent’s case was that the email sent on 27 August 2021 caused her injury, however the email could not “meaningfully be separated from the decision of the government to impose the requirement and/or the announcement of it by the Premier;”^[38]

    (d) the decision to impose the requirement and the announcement of the requirement was the only substantial contributing factor to the cause of the respondent’s injury, and was real and of substance, and

    (e) the respondent’s employment was therefore neither a substantial contributing factor nor the main contributing factor to the injury.

70. The appellant refers to the Presidential decisions of the former Workers Compensation Commission in WorkCover Authority of NSW v Rohde,^[39] Cram Fluid Power Pty Ltd v Green^[40] and a Commission decision in Sinclair v Parmalat Australia,^[41] as authorities to say that it is important in the Commission to act with comity in the decision-making process. The appellant also quotes from French J’s observations (as his Honour then was) in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs^[42] in respect of the importance of judicial comity.

The respondent’s submissions

71. The respondent notes that the matter of Bjekic is the subject of an appeal to a Presidential Member and the appeal is yet to be determined. She submits that it was not ever suggested to the Member by either party that the decision in Bjekic was wrong, so that the ambit of the dispute before the Member was clear. The respondent says that Bjekic was distinguishable because it was factually different.
72. The respondent disputes the appellant’s suggestion that the Member considered that Bjekic was “plainly wrong” and submits that the respondent did not at any stage question the legal principles applied by the Member in Bjekic. The respondent describes the differing factual circumstances involved in that case and the present case. She indicates that both parties accepted that they were bound by the Public Health Order, which was extraneous to them. The respondent submits that the difference in the present case was that the appellant could have dealt with the requirements of the Order differently, that is, not simply threatening the respondent with dismissal and effecting the dismissal in December 2021, after at least 16 years of dedicated service.

As to Ground Two (a)

The appellant’s submissions

73. The appellant says that if the Member declined to follow Bjekic for either of those reasons (correctness or applicability), he should have given reasons for doing so.
74. The appellant submits that the Member failed to give reasons in respect of those submissions and thereby erred in law or in the exercise of his discretion. The appellant asserts that the Member failed to explain why the decision in Bjekic was factually distinguishable, even if paragraph [68] of the reasons was taken to be a finding, and nor did the Member conclude that Member Wynyard’s decision was wrong. The appellant submits that, in accordance with the Member’s requirements to give reasons, summarised in Yarrawonga & Border Golf Club Ltd v Williamson,^[43] the reasons should be sufficient to explain the reasoning process so that the unsuccessful party can understand why it did not succeed. The appellant also refers to r 78 of the Personal Injury Commission Rules 2021, which requires that a member’s statement of reasons must include:
    

    (a) the appropriate decision-maker’s findings on material questions of fact, with reference to the evidence or other material which provided the basis for those findings;(b) the decision-maker’s understanding of the applicable law;

    (c) the reasoning processes that led the decision-maker to the conclusions made, and

    (d) sufficient reasons, in the decision-maker’s opinion, to make the parties to the proceedings aware of the decision-maker’s view of the case made by each party.

75. The appellant asserts that the Member’s reasons do not expose his findings on material facts (that is, precisely how the respondent was injured), his understanding of the law (in particular, the correctness of otherwise of Bjekic), or his reasoning process leading to his conclusion that the respondent was injured on 27 August 2021 and by whom.
76. The appellant asserts that the Member’s reasons for his conclusion were indiscernible. The appellant points to the Member’s reasons at [93], in which the Member accepted the respondent’s submissions summarised by the Member at [61] of his statement of reasons, that is, that the respondent suffered her injury because she was a teacher. The appellant submits that the Member’s references to actions taken by the appellant suggest that the Member may have accepted that Bjekic was decided correctly. The appellant says that the submissions made by the respondent, summarised by the Member at [61], indicate that the respondent’s case was based upon the notion that Bjekic was a fair representation of the law. The appellant submits that, elsewhere, such as at [8], where the Member summarised the respondent’s evidence describing the injury as “a result of the vaccination mandate and her decision not to be fully vaccinated”, the Member appeared to suggest that the fact that the mandate was not introduced by the appellant was immaterial.

The respondent’s submissions

77. The respondent refers to Sydney Catholic Schools v Bridgefoot,^[44] in which Phillips P cited Wang v State of New South Wales^[45] as authority to say that not every failure to refer to an argument amounts to error and it is necessary to engage with the nature and materiality of the argument, in the context of the proceedings. The respondent submits that in this case, neither party raised an issue as to the correctness or otherwise of Bjekic.
78. The respondent submits that at [68], the Member dealt with the submission as to the factual difference in Bjekic, when he said “[c]learly, the unwillingness or inability to wear a face mask in that circumstance would be a breach of the Public Health Order”.^[46] The respondent asserts that the passage was not simply a recitation of her submissions. She submits that the use of the expression “clearly” indicates that the Member was giving consideration to the respondent’s submission.
79. The respondent contends that, in those circumstances, it was not incumbent upon the Member to provide reasons why he did, or did not, consider Bjekic to be correct. The respondent asserts that the Member gave reasons as to why he accepted that Bjekic was distinguishable.

As to Ground Two (b)

The appellant’s submissions

80. The appellant submits that the Member failed to give adequate reasons for his conclusions that the respondent’s employment was a substantial contributing factor to her injury and the main contributing factor to the contraction of a disease.
81. The appellant points to the Member’s reasons at [93] and submits that the Member appeared to have found that the cause of the respondent’s injury was the email on 27 August 2021, which, the appellant says, is contrary to other findings the Member had made. The appellant refers to the distinction drawn by the Member between the Public Health Order issued by the government and the implementation of that Order by the appellant. The appellant points out that the Public Health Order was not promulgated until 23 September 2021. The appellant submits that “[h]ow or why”^[47] the effect of actions, or the reasonableness of those actions occurring on 27 August 2021, can be assessed by later events was not explained.
82. The appellant asserts that the policy was not implemented by the email because the policy was not formed until later. The appellant submits that, even if it did implement the policy, it was not distinct from the actions of the government and the Premier undertaken on 27 August 2021. The appellant contends that, when considering the email in that context, it was an extension of the government’s actions on 27 August 2021. The appellant asserts that the reasoning in Bjekic ought to have been applied.
83. The appellant adds that the only distinction the Member identified between the email implementing the policy and the policy itself was that the email referred to all staff being fully vaccinated, not just those working at schools. The appellant indicates that the respondent’s work was ordinarily work at a school. The appellant says that, notwithstanding the respondent’s suggestion that arrangements could have been made to accommodate her, the fact is that the respondent was employed as a special education teacher at a school, which was inherently work at a school.

The respondent’s submissions

84. The respondent asserts that the Member did not fail to give reasons for finding that the respondent’s employment was a substantial contributing factor to the injury.
85. The respondent submits that the Member found injury occurred on 27 August 2021, which was an injury pursuant to s 4(a) and not s 4(b) of the 1987 Act and the Member was therefore not required to find that the employment was the main contributing factor to the injury. She submits that all that was required was for the Member to determine whether the employment was a substantial contributing factor to the injury, and he accepted her submissions as to why the employment was a substantial contributing factor, recited at [61] of his reasons.

As to Ground Three

The appellant’s submissions

86. The appellant says that the errors identified in Ground One and Ground Two (a) have led to the Member erring in fact by finding that the respondent’s employment was a substantial contributing factor to the injury and the main contributing factor to the contraction of a disease. The appellant submits that the Member’s failure to address Bjekic and the appellant’s submissions about that case led the Member to fail to correctly analyse and make findings about the submissions going to the “central” issue of causation.
87. The appellant concedes that a Presidential member is not entitled to interfere with a decision of a member simply because a different outcome is preferred.^[48] The appellant submits, however, that for the above reasons, the Member’s approach to the question of causation was affected by errors of fact and his erroneous approach to Bjekic.
88. The appellant asserts that there is no real or substantial distinction between the email and the public health policy. The appellant says that the notion that the policy caused the injury is supported by the respondent’s own evidence that her symptoms were caused by the vaccination mandate and her decision not to be vaccinated, and not the email itself. The appellant points to the respondent’s statement evidence and submits that the respondent only referred to receiving mandatory notice on 27 August 2021 and did not mention the email from the appellant.
89. The appellant submits that the earliest medical evidence, namely the certificate of capacity issued by Mr Ziedni on 12 October 2021, is consistent with the policy mandate itself being causative, as Mr Ziedni recorded that the symptoms, which commenced on 27 August 2021, arose from the current COVID-19 restriction and mandatory vaccination. The appellant asserts that the evidence of Dr Rastogi was also consistent, in that she attributed the respondent’s symptoms to the public order mandate requiring vaccination which was made suddenly in August 2021.
90. The appellant submits that Dr Rastogi made reference to emails from the appellant and the principal of the school which were intensive and on a daily basis. The appellant submits that the email on 27 August 2021 did not meet that description. The appellant contends that the Member’s finding that the respondent suffered injury on 27 August 2021 could only be consistent with the evidence from the respondent and Dr Rastogi that it was the mandate itself that was causative, in the context of it being announced suddenly. The appellant submits that the mandate and the announcement of it were actions by the New South Wales Government and the Premier, and the email was not separate from those actions. The appellant says, that even if the email did constitute an implementation of the policy, it was the policy itself that led to a change of circumstance on 27 August 2021 thus causing the respondent’s injury.
91. The appellant concludes that, for the above reasons, and applying the reasoning in Bjekic, the respondent’s actual employment was not a substantial contributing factor, or the main contributing factor, to her injury.

The respondent’s submissions

92. The respondent says that she presented her case on the basis that her injury occurred on receipt of the email dated 27 August 2022, which was consistent with her evidence and that of her treatment providers, Mr Ziedni and Dr Vago, who cited that date as the date of the injury. She adds that Dr Rastogi took the history of heightened anxiety following coercive emails. The respondent submits that it was on the basis of this medical evidence that the Member found an injury pursuant to s 4(a) of the 1987 Act, requiring the employment to be a substantial contributing factor to the injury and not the contraction or aggravation of a disease within s 4(b) of the 1987 Act, in which the test is that of the employment being the “main contributing factor”.
93. The respondent points to the Member’s reasons at [61], wherein the Member summarised the respondent’s submissions in relation to whether her employment was a substantial contributing factor to the injury, namely that:
    

    (a) the respondent was a teacher when she received the email;(b) because she was a teacher, she was subjected to the manner in which the appellant implemented the Public Health Order, and

    (c) because she was a teacher, her employment was eventually terminated.

94. The respondent says that, while the Member did not consider all of the factors set out in s 9A(2), he did take into account the time and place of the injury, the duration of employment, the probability that a similar injury would have happened anyway, the respondent’s state of health, and her activities outside of the workplace.
95. The respondent submits that the Member also relied upon the opinion of Dr Rastogi when considering the question of injury.
96. The respondent takes issue with the appellant’s submission that there was no “meaningful separation” between the Public Health Order and the email implementing the Order. The respondent asserts that the appellant has not identified what “meaningful” means, or whether it is a point of distinction, and the appellant did not point to any impact that a lack of “meaningful separation” would have.
97. The respondent refers to the appellant’s submission that it had no choice but to implement the Public Health Order in the manner that it did. The respondent contends that the submission is erroneous, and points to the evidence of Dr Wood, who confirmed that:
    

    (a) a “blanket email” was sent to all staff, including those working from home;(b) the senior executive did not delineate between all staff and any particular staff;

    (c) no special leave provisions would be available for staff who did not comply with the Order and no reasons were provided as to why that was the case;

    (d) the Police would be called if staff were suspected to be in breach of the Order;

    (e) if staff breached the appellant’s directive, the breach would be investigated, disciplinary action in respect of misconduct would result and may lead to termination of employment;

    (f) the only exception to the mandate was that the vaccine was medically contraindicated;

    (g) no evidence was given in respect of the “Management Guidelines”;

    (h) no reasons were given as to why working remotely was not logistically possible or why the relatively small number of non-compliant teachers could not be accommodated or simply stood down;

    (i) there was no explanation as to why teachers working in curriculum development were required to be doubly vaccinated, and

    (j) no thought was given as to how long the Public Health Order would be in force, and the fact that all teachers were recalled to schools in May 2022, despite their vaccination status.

98. The respondent submits that there was a substantial difference between the Public Health Order and what constituted the requirements sought by the appellant, and the manner in which the appellant implemented the Order. The respondent says that it was the appellant’s directive to the respondent on 27 August 2021 that led to her suffering her acute psychological injury. The respondent concludes that this case is factually very different to that of Bjekic.

THE RELIEF SOUGHT

99. The appellant seeks to have the appeal upheld and the Member’s orders set aside. The respondent is silent as to the orders sought.

CONSIDERATION

100. The appellant submits that its grounds of appeal “all concern the issue as to whether the Member ought to have adopted the approach taken by Member Wynyard in Bjekic, central to the Secretary’s arguments on causation, particularly in circumstances where the Member did not find that the reasoning in Bjekic was plainly wrong.”^[49] Thus the appeal depends upon the appellant succeeding in respect of its assertion that the Member ought to have followed Member Wynyard’s reasoning and conclusions.
101. The issues in dispute in both cases involved an evaluation of the evidence and conclusions reached on the basis of the facts in each case. The factors that enable a Presidential Member to intervene in a factual determination are well known within this jurisdiction, and were helpfully summarised by Roche DP in Raulston v Toll Pty Ltd^[50] as follows:

“…

(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.

The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd 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.’”^[51]

102. Thus, in order for the appellant to succeed, it must identify the kind of error or errors described in Raulston.

Ground One: The Member failed to consider an argument made squarely by the appellant that the approach taken by Member Wynyard in Bjekic was correct and ought to have been followed, and
Ground Two (a): The Member failed to give adequate reasons as to the correctness and/or applicability of Bjekic

103. It is convenient to deal with Grounds One and Two (a) together.
104. The appellant’s oral submissions to the Member in relation to Bjekic were recorded in the transcript of proceedings dated 12 October 2022. The dialogue was as follows:

“MS ROBERTS: … My friend has referred to a decision of Member Wynyard, I have a copy to hand but I believe the Commission may be familiar with it.

MEMBER: Just bear with me because I had a look at that decision. Is that a decision of – that is the one that you referred to, thank you. I understand that’s under appeal but be that as it may.

MS ROBERTS: I can hand a copy up if that would assist.

MEMBER: I’ve got a copy. This is – that’s right, [2022] 114, thank you, I’ve got that.

MS ROBERTS: That’s right. The other decision that my friend referred to ….”.^[52]

105. The appellant also provided written submissions following the arbitration in October 2022. The appellant referred to Bjekic in the following terms:

“A particularly analogous recent authority is the decision in Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2022] NSWPIC 214.

… In the present case, as in Bjekic, any injury the [respondent] suffered following receipt of an email communicating a public health direction on 27 August 2021 was not one to which her employment (rather than the public health mandate) was the substantial contributing factor.”^[53]

106. The respondent submitted that Bjekic involved “a different scenario”,^[54] and, in written submissions, submitted that Mr Bjekic “could not be a security officer at a hospital who was required to wear a face mask by the Public Health Order, whereas this case is about how the [appellant] implemented the Public Health Order regarding teachers who worked ‘at’ a school.”^[55] (emphasis in original)
107. The appellant made no submission to the Member over and above the submission that Bjekic was “particularly analogous” to the present matter. The appellant certainly did not submit to the Member that he was required, or even expected, to apply comity in respect of Member Wynyard’s decision. Nor did the appellant submit to the Member that comity required him to follow the decision of Member Wynyard unless he considered it to be wrong. It is not an error for a Member to fail to consider a submission not put. If a matter is not raised, it is not an error not to refer to it.^[56] Further, the obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties.^[57] The appellant cannot say that the Member erred by failing to give adequate reasons for the “correctness” of Bjekic or the “applicability” of Bjekic to this case. The Member observed:

“The [respondent] refers to the decision of Member Wynyard in [Bjekic] which dealt with a different factual scenario in which the worker was a security officer working in a hospital and required to wear a face mask. Clearly, the unwillingness or inability to wear a face mask in that circumstance would be a breach of the Public Health Order.”^[58]

108. That reasoning was sufficient, in my view, to address the appellant’s submission that Bjekic was a “particularly analogous recent authority” to this matter.
109. In any event, the appellant misunderstands the concept of comity. In Hicks, French J reviewed a number of authorities on the question of judicial comity. His Honour observed:

“I am not bound by any doctrine of precedent to apply the construction adopted by Ryan J in Ball. The position in this Court is the same as that expressed by Lord Goddard CJ (Atkinson and Lewis JJ agreeing) in Police Authority for Huddersfield v Watson [1947] 1 KB 842 at 848:

‘… I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction.’”^[59]

110. Justice French further noted Burchett J’s observation in La Macchia v Minister for Primary Industries and Energy^[60] that:

“The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court … ‘a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance … unless he is convinced that the judgment was wrong.’ … The word ‘usually’ indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle …”.^[61]

111. Most recently, Chen J in Comino v Kremetis^[62] reviewed the relevant authorities and observed that “the practice is limited to questions of law, and has no application to questions of fact” and “the rule does not override the fundamental duty of the trial judge to decide the case albeit that that process involves consideration of, and proper regard being given to, the previous judgment.”^[63]
112. The determination required of the Member in the present matter was a question of causation of the injury and whether the respondent’s employment was a substantial, or the main contributing factor to the injury. The Member’s conclusions were conclusions of fact. The same can be said in respect of Bjekic. As Chen J observed in Comino, judicial comity is limited to questions of law and statutory interpretation and has no application to factual determinations. Neither case turned upon questions of statutory interpretation or principles of law. In any event, the appellant has not made it apparent as to how a failure to apply comity could constitute error of the kind required by s 352(5) of the 1998 Act, which allows for an appeal to a Presidential Member to be brought only on the basis of error of fact, law or discretion.
113. The appellant has failed to establish error on the part of the Member in the manner complained of in Grounds One and Two (a) of the appeal. Both grounds fail.

Ground Two (b): The Member failed to give adequate reasons for finding that the respondent’s employment was a substantial contributing factor to the injury and the main contributing factor to the contraction of a disease

114. Unhelpfully, the appellant’s submissions largely do not clearly identify their relevance to any particular ground of appeal, in contravention of Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes. It is difficult therefore to discern what submissions relate to this ground of appeal. The appellant’s general submission is that all of the alleged errors on the part of the Member have resulted from the failure by the Member to follow Bjekic. I have determined that there was no error on the part of the Member in not following that decision.
115. In any event, the Member’s reasons, when read as a whole, were more than adequate to support his conclusion as to the substantial contributing factor to the injury and the main contributing factor. He reasoned:

“In my view the evidence supports a finding that the [respondent’s] employment with the [appellant] was a substantial contributing factor to injury. That issue is raised in the s 78 notice. Dr Rastogi in [her] report refers to:

(a) the [respondent] suffering anaemia;(b) the [respondent] being in a fragile mental condition, and

(c) a previous psychiatric history of adjustment disorder with anxiety associated with a work related back injury in 2012 for which Mrs Dawking received psychological counselling and conservative treatment for pain, and that after 12 months off work returned to pre-injury functioning.

Mrs Dawking was also caring for her husband who was unwell. There is insufficient evidence to suggest that the claimed injury of 27 August 2021 was an aggravation, acceleration, exacerbation or deterioration of a disease, the main contributing factor to which was the [respondent’s] employment with the [appellant] (s 4(b)(ii) of the 1987 Act). When consideration is given to the kinds of matters that can be taken into account for the purposes of a determination of substantial contributing factor listed in s 9A(2) of the 1987 Act, it is clear that the [respondent’s] employment was a substantial contributing factor to injury.

The [respondent’s] submission, put in the alternative, that her employment was the main contributing factor to the onset of her condition was reliant as, I understand, on s 4(b)(i) of the 1987 Act, that is, a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease. It was submitted by counsel ‘…in the alternative to overcome 9A and 4(b)(ii)…’ I accept that there is sufficient evidence to support a finding that employment was the main contributing factor to the contracting of a disease.”^[64]

116. The Member clearly took into account the facts that may have constituted some other contributing factor. The Member pointed out that there was no medical evidence adduced by the appellant to counter the respondent’s evidence and the evidence of Dr Rastogi. He noted that Dr Rastogi had described the respondent as “a highly functioning person who took pride in her job, and her self-worth and self-esteem was enmeshed with her job.”^[65] He had already accepted the respondent’s submissions, recorded by him at [61] of his reasons, that:

“She was a teacher when she received the emails, it is because she was a teacher that she is subject to the manner in which the Department implemented the Public Health Order, and it is because she was a teacher that by November her employment was terminated. The [respondent] submits that there is no suggestion from the [appellant] by way of any medical evidence that her employment was anything other a substantial and, indeed, the main contributing factor if need be, for the occurrence of her psychological condition.”

117. For the above reasons, Ground Two (b) fails.

Ground Three: The Member erred in finding that the respondent’s employment was a substantial contributing factor to the injury and the main contributing factor to the contraction of a disease

118. Once again, the appellant’s assertion is that all of the alleged errors on the part of the Member have resulted from the failure by the Member to follow Bjekic. The appellant submits that:

“the legal or discretionary errors the subject of Grounds 1 and 2(a) give rise to the error of fact the subject of Ground 3, the Member’s erroneous findings on causation.”^[66]

119. The appellant has not established error on the part of the Member in failing to adopt the decision in Bjekic and Grounds One and Two (a) failed.
120. The appellant points to [93] of the Member’s reasons and says that the Member appeared to have determined that the respondent’s injury was caused by the email dated 27 August 2021. The Member’s reasoning was that:

“Based on the medical evidence tendered by the [respondent], I am satisfied on the balance of probabilities that she sustained psychological injury arising out of or in the course of her employment as claimed by her. She commenced to suffer this injury with the receipt of the email from the [appellant] at 10.52 am on 27 August 2021. I accept the [respondent’s] submissions in respect [of] the receipt of injury arising out of or in the course of her employment referred to in [61] above. The injury was having a significant impact on her psyche by the time she consulted her general practitioner who referred her to a psychologist for treatment. I think that at least part of the reason that Mrs Dawking suffered such a reaction to the email is touched upon by Dr Rastogi when he says that she was a highly functioning person who took pride in her job, and her self-worth and self-esteem was enmeshed with her job. The content of that email, and whether or not it was strictly accurate in content, will be discussed hereunder when the s 11A issue is dealt with.”^[67]

121. The reference made by the Member to [61] of his reasons is a reference to the passage reproduced at [116] above. The appellant asserts that:

“what occurred on 27 August 2021 was the decision of the government of NSW to impose a mandatory requirement that staff working at public schools (among other places) have double doses of a COVID-19 vaccination by 8 November 2021 and/or the announcement of that requirement by the Premier of NSW”^[68]

and, therefore that the respondent’s employment “was neither a substantial contributing factor nor the main contributing factor to her injury.”^[69]

122. The appellant concedes that the email could not constitute the implementation of the policy because the policy had not been implemented until 23 September 2021, yet submits that there was no “real” or “substantive distinction” between the email and the policy. This submission ignores the evidence that the appellant imposed broader application and sanctions than the content of the Public Health Order, which was eventually issued. The application of the Order and the threatened sanctions initiated by the appellant put in jeopardy the respondent’s career with the appellant, and those factors were plainly spelt out by the Member in his reasons in dealing with the question of causation.
123. The Member’s conclusion was arrived at by a consideration of the evidence and the submissions of the parties as to what that evidence showed. The conclusions were factual conclusions. Applying Raulston, the appellant has failed to show that Member overlooked material facts, or gave undue or too little weight in deciding the inference to be drawn, or that the available inference in the opposite sense to that chosen by the Member was so preponderant that the Member’s decision was wrong.
124. The grounds of appeal do not challenge the Member’s finding as to injury. The grounds are limited to the Member’s failure to follow Bjekic, the Member’s purported failure to give adequate reasons, and the Member’s finding that the respondent’s employment was a substantial contributing factor and the main contributing factor to the injury.
125. For these reasons and the reasons expressed in respect of Ground Two (b), Ground Three of the appeal fails.

CONCLUSION

126. The appellant has failed to establish error on the part of the Member and the appeal fails.

DECISION

127. The Member’s Certificate of Determination dated 3 November 2022 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

1 May 2023