What counts as "discipline" as a defence in psychological injury cases?

In the Colin Joss & Co Pty Limited v Williams case of psychological injury, the NSW Personal Injury Commission explored what is meant by  "discipline"’ as a defence under Section 11A (1) of the Workers Compensation Act 1987.

Essentially, the Commission clarified that only correspondence conveying a possible sanction or punitive consequence qualifies as discipline. 

The Commission's decision provides guidance on what should be included in communications from an employer in order for it to fall within the ‘discipline’ category.

Facts of the case

The worker, Angela Williams, was self insured and employed as a contract cleaner working at schools.

Between August and September 2021, Williams was notified by her employer, Colin Joss & Co Pty Limited, that she was required to be double vaccinated to carry out her cleaning duties.

The notification did not explicitly state that Williams' employment may be terminated if she was not double vaccinated.

In part, it stated:

“all school and support staff would need to be fully vaccinated by 8 November, with a Public Health Order to follow.

"Please be aware that as an employer, Joss is legally required to comply with the Public Health Order and ensure all staff who are required to attend NSW school sites in any capacity, will need to be fully vaccinated...

“...unfortunately, an employee that chooses to not follow the health advice, will be putting their employment at a school site at risk. Limited hours may be available at other sites within the area but there is no guarantee of employment.”

At the beginning of October 2021, Williams submitted medical evidence to support exemption from receiving the COVID-19 vaccination due to a contra-indication to the AstraZeneca vaccine.

Subsequently, between October and November 2021, Williams continued to be notified that if she was not double vaccinated her employment could be at risk.

In particular, correspondence dated 24 November advised that the company had reviewed the respondent’s COVID-19 vaccine medical contra-indication, which it “deemed as providing an ineligible reason for exemption”.

Psychological injury

Ultimately, on 31 March 2022, Williams' employment was terminated and she submitted a claim for a psychological injury.

The employer accepted that the worker suffered a work-related psychological injury, but relied on the 11A (1) defence which states;

Compensation is not payable if the injury wholly or predominantly results from reasonable action taken or proposed to be taken by the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or the provision of employment benefits.

The employer argued that the worker’s psychological injury was wholly or predominantly caused by the employer’s action in respect of:

• discipline - notifying the worker of the requirement to be double vaccinated; and

• dismissal - terminating her employment after she was not double vaccinated.

The Commission's Judgment

At first instance, the Personal Injury Commission Member — a tribunal decision-maker in the Workers Compensation Division, found that the employer’s action of notifying the worker of the requirement to be double vaccinated did not amount to disciplinary action.

Therefore, the Member was not satisfied that the employer’s relevant action was the predominant cause of the psychological injury. The employer’s defence to the claim failed as a result.

The employer appealed the Member’s decision.

On appeal, the Presidential Member of the Personal Injury Commission, who hears appeals from first-instance decisions, was satisfied that a breach of policy which could result in chastisement was sufficient to establish disciplinary action.

However, he was not persuaded that the notification provided by the employer in this case was sufficient to meet this requirement.

The notification did not contain any proposed sanction or punitive action if the worker was not double vaccinated to be considered discipline.

The Presidential Member was satisfied that later correspondence amounted to action with respect to discipline, when the worker was notified that without a double vaccination her employment could be at risk.

However, as the later correspondence was not found to be the whole or predominant cause of the psychological injury, the 11A defence failed again on appeal.

In this case, the psychological injury was found to be caused primarily by the employer’s requirement that the worker be double vaccinated by a specific deadline, combined with ongoing pressure despite the worker submitting a medical exemption.

" [Ms Williams]  stated that the staff were looking down on her and passed sarcastic comments to her as she was unvaccinated...

"She was still getting clarification about vaccination. She stated that she was receiving emails from the Josh Facility Management [sic] and were very intense and on daily basis.

"There were daily emails and correspondence seeking updates on vaccination mandate and very short time frames with threats that staff would not be allowed on site if they had not been vaccinated. She was coerced to have two vaccinations within a week to return to work". 

The Commission noted a significant deterioration in the worker’s mental health following the initial memorandum notifying her of the vaccination requirement.

However, the later correspondence threatening potential dismissal did not constitute the predominant cause of the injury, as the worker’s psychological harm had already begun earlier.

The cause was linked mainly to the stress and coercion related to the vaccination mandate and the handling of the exemption, rather than the later disciplinary or dismissal actions.

Implications

For an action of an employer to be classified as discipline, the worker must be notified that some sanction or punitive measure could or would be taken if a direction is not followed.

This case also serves as a good example of the evidentiary burden which lies on employers to establish all elements of a 11A defence.

That is, not just that the action was reasonable, but first, that the action actually falls into a 11A category.

Source: Personal Injury Commission of new South Wales.

This article originally appeared on the Turks webpage and is reproduced here with permission.