Opinion
Psychological injury claims after employer-implemented vaccine mandates
14th Sep 2023
In August 2021, the NSW Government introduced the Public Health (COVID-19 Vaccination of Workers) Order 2021, which established mandatory COVID-19 vaccinations for health sector workers. Another order followed in September, the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021, which extended the double vaccination mandate to all public school and preschool staff.
Two recent decisions in the NSW Personal Injury Commission (PIC) have awarded compensation to workers who suffered a psychological injury as a result of their employer’s implementation of the above vaccination public health orders.
Case 1: Worker’s compensation claim for psychological injury related to vaccine mandates denied by insurer
The case of Dawking v Secretary (Department of Education) [2022] NSWPIC 611 (Dawking), involved the Department of Education (the respondent) sending an email to all staff, including the injured worker, in August 2021, advising of the above public health orders.
In September 2021, the injured worker received a letter from the respondent advising that she would be found guilty of misconduct and face disciplinary action, including possible termination, if she was not double vaccinated by 8 November 2021. The respondent required proof of double vaccination or proof of a medical contraindication (indicating an exemption to the vaccine mandate) by 8 November 2021. The injured worker did not provide this, and she was subsequently terminated on that date.
In October 2021, the worker submitted a NSW workers compensation claim for weekly payments and medical expenses. The worker claimed she suffered psychological injury as a result of the implementation of the vaccine mandate by her employer.
The insurer declined the injured worker’s claim on the grounds that the injury was wholly or predominantly caused by the reasonable action of the employer with respect of discipline. The injured worker then submitted an Application to Resolve a Dispute in the PIC.
The PIC Member hearing the matter stated that the respondent: ‘has not produced any medical evidence to show that the action that it claims it took with respect to discipline, reasonable or otherwise, was the whole or predominant cause of injury’ (at [99]).
The Member’s conclusion was that there was: ‘insufficient evidence for the respondent to show, on the balance of probabilities, the applicant’s injury was caused by action it took, with respect to discipline’ (at [100]).
The Member did go on to explain how they considered the actions of the employer to be unreasonable. They stated that, in their view, the way the respondent implemented the public health order was not reasonable. This included the fact the respondent did not consider the potential impact a termination of employment would have on the injured worker’s re-employment once the public health order ceased.
Case 2: Worker’s compensation claim for psychological injury due to threat of termination of employment denied by insurer
The case of Davis v Secretary, Department of Education [2022] NSWPIC 715 confirms the principles in the case of Dawking. That is, the onus is on the respondent to prove the actions of the employer were reasonable and that the reasonable action was the whole or predominant cause of the injury to the worker.
The facts of this case involved the same public health order regarding vaccine mandates in NSW for education and care workers, and the respondent sending correspondence to the injured worker stating that they would be found guilty of misconduct and face disciplinary action (including termination of employment) if they were not double vaccinated by 8 November 2021.
The PIC Member hearing this case found that the injured worker did suffer a psychological injury that arose from the threat of termination of employment if they were not double vaccinated.
The Member made clear that the onus was on the respondent (the Department of Education) to show that the injured worker’s injury was wholly and predominantly caused by the employer’s reasonable action (ie, the implementation of the government-prescribed vaccine mandate).
In this case, like the case above, the respondent did not have independent medical evidence to determine what the whole or predominant cause of the injury was contrary to the applicant’s assertions. The Member, in this case, did not find it appropriate to discuss whether or not the actions of the employer were reasonable.
Final note
It is important to note that, in both of these cases, the insurer did not require the injured worker to submit themselves to an independent medical examination with a psychiatrist.
The insurer sought to rely on the defence under s11A of the Workers Compensation Act 1987 (NSW), which states that:
‘no compensation is payable if the worker’s injury was wholly and predominantly caused by the reasonable actions of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.’
This defence requires proof from the respondent, rather than from the injured worker that the employer’s actions were unreasonable. It remains to be seen what effect on a similar claim, if any, a respondent’s provision of supportive independent medical evidence will have.
What does this mean for workers’ psychological injury claims related to vaccine mandates?
Neither of these cases sought to determine whether vaccine mandates by state or federal governments are legal. The cases also do not confirm that compensation is available for psychological injuries that solely result from the vaccine mandate.
Rather, these cases confirm the established principles of whether an employer has taken reasonable action with respect to discipline or dismissal.
This is an edited version of an article first published by Hall Payne Lawyers
The ALA thanks Craig Joshua for this contribution.
Craig Joshua is an associate in the personal compensation division at Hall Payne Lawyers. Craig also has experience in employment law, migration law, property law and commercial litigation. He completed a Bachelor of Science in Psychology from the University of NSW before completing a Bachelor of Laws and is passionate about using his background in psychology to build and maintain strong client relationships to better understand and support the needs of each individual.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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