Discipline of teacher for non-compliance with the Public Health Order 2021 

Martsoukos v Secretary, Department of Education [2024] NSWPIC 16

Proposed discipline of a teacher for their non-compliance with the Public Health Order 2021 (COVID-19 Vaccination of Education and Care Workers) was found to be ‘reasonable action’ for the purposes of Section 11A of the Workers Compensation Act 1987.

Background

The Applicant was employed by the Respondent as a Teacher. She alleged suffering an aggravation of a psychological condition following receipt of emails from the Respondent on 27 August 2021 advising her that she would have to be fully vaccinated against COVID-19 as a condition of returning to her employment.

The Respondent asserted that they followed the Public Health Order 2021 (COVID-19 Vaccination of Education and Care Workers) (‘COVID-19 Order’) which required education workers to be fully vaccinated by 8 November 2021.

The Applicant had sought an exemption from vaccination under the COVID-19 Order on the basis that the mandate denied her the fundamental right to work. She also reported being scared of the effects of the vaccinations in the short and long-term. The exemption application was subsequently rejected by the School’s Principal. As a result of the email on 27 August 2021, the Applicant reported worsened psychological symptoms and she was diagnosed with Major Depressive Disorder with anxious distress by Dr Boulton who certified her unfit for work. The Applicant remained on sick leave until she was medically retired on 17 August 2023.

On 22 October 2021, the Respondent issued a Direction that employees who failed to comply with the COVID-19 vaccination requirements would face disciplinary action. On 12 November 2021, the Respondent introduced a policy regarding non-compliance with the COVID-19 Order.

The policy advised that non-compliance with COVID-19 Vaccination Guidelines amounted to misconduct.

The Respondent stated that the Applicant’s failure to comply with the COVID-19 Order was inappropriate behaviour and the proposed actions set out in the policy regarding non-compliance with the COVID-19 Order were accordingly a matter of discipline.

The Law

Section 11A of the Workers Compensation Act 1987 provides that no compensation is payable in respect of a psychological injury if that 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 either transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or the provision of employment benefits to workers.

Issues for Determination

1. Whether the actions of the employer were the whole or predominant cause of the injury.
2. Whether the actions of the employer fall within the category of discipline.
3. Whether the actions were reasonable.

Decision

Weighing all of the circumstances, Member John Wynyard made the following findings:-

• The actions of the employer were the whole or predominant cause of the injury. Member Wynyard stated that there was no evidence to suggest that there was any other cause for her injury than the receipt of the email on 27 August 2021.
• The proposed actions of the employer fell within the category of discipline. Member Wynyard considered that the NSW Vaccination Guidelines of 5 October 2021 made it quite clear that, unless there was a medical contraindication, staff would not be allowed to attend school sites, and after 8 November 2021, were required to comply with the COVID-19 Order. Further, the Determination under the Teaching Service Act 1980 of 18 October 2021 required vaccination evidence, or a medical contraindication certificate. Further, the policy document dated 12 November 2021 made non-compliance with the COVID-19 Order, misconduct.
• Member Wynyard considered that that the evidence from the Applicant demonstrated that she was aware of the mandatory nature of the COVID-19 Order and that, if a compulsory requirement of her employment was not followed, then there would be consequences of a disciplinary nature. Member Wynyard was therefore satisfied that the emails from the Respondent on and after 27 August 2021 amounted to proposed actions of the employer with respect to discipline.
• The actions of the employer were reasonable. Member Wynyard considered that the email correspondence from the Respondent to its employees demonstrated that they took care to notify their employees (and the Applicant) that COVID-19 vaccination was to be made compulsory in plenty of time for its employees to organise the necessary certification.  Member Wynyard referred to his comments in the matter of Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2023] NSWPICPD 27, in support of the COVID-19 Order. In this respect, Member Wynyard stated that the COVID-19 Order spoke of the emergency of the pandemic and that the protection of children was of paramount importance so as to empower the Respondent to require COVID-19 vaccinations for their employees.

In summary, Member Wynyard found that the employer had established a Section 11A defence with respect to discipline. For these reasons, there was an Award for the Respondent.

Implications

This decision demonstrates that a Member of the Commission may be satisfied that a Section 11A defence is established where an employer disciplines a worker for their non-compliance with a Public Health Order (COVID-19 Vaccination), depending on the circumstances of the matter.

Should you have any queries concerning a workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.