Case: Lancaster v City of Sydney Council [2022] NSWPIC 484
Date of Decision: 30 June 2022
Jurisdiction: Personal Injury Commission, John Isaksen
Background
The Applicant in these proceedings was a greenkeeper and turfman for the Respondent and claimed that he sustained a psychological injury in the course of his employment as a result of alleged bullying and harassment by officers of the Respondent in the implementation of its COVID-19 vaccination policy and ceased work in January 2022.
The Respondent conceded that the Applicant had suffered a psychological injury at work but raised the defence pursuant to section 11A, namely, that his injury was wholly or predominantly caused by reasonable management action taken or proposed to be taken by the Respondent with respect to the provision of employment benefits.
It would appear from Member Isaksen’s decision that the Applicant did not attempt to argue an ulterior causative mechanism of injury other than the supposed unreasonable management action and thus the only matters for determination were whether the action fell within the term ‘provision of employment benefits’ and whether the action was reasonable.
On 26 August 2021, the Applicant was notified by the Respondent that he needed to have a COVID-19 vaccination in order to attend work. That day, the Applicant obtained a ‘COVID-19 vaccine medical contraindication’ form wherein he relied on the medical condition of ‘history of PTSD/poor mental health at present with severe anxiety and panic attacks’ in order to exempt him from the vaccine for one year.
On 29 August 2021, NSW Health issued a public health order authorizing workers were to have one vaccine dose by 9 September 2021.
On 6 September 2021, the Respondent called the Applicant into a meeting wherein he was advised that he was required to obtain a new exemption with a period of 6 months. The Applicant contested his one-year exemption should stand and this accepted by his supervisor after they had a discussion with human resources. In an email between representatives of the Respondent, it was confirmed that his exemption was valid unless the public health order changed.
On 14 December 2021, the Respondent introduced its COVID Worksafe Policy on 14 December 2021 which required all employees to be double vaccinated by 14 January 2022 and the Applicant was made aware of the policy.
From 25 December 2021 to 14 January 2022, the Applicant was on annual leave and during this time he received a phone call from a HR representative of the Respondent who asked that an updated certificate be obtained though no clear reason was put forward. This request was followed up by an email which enclosed a form required to be completed by the Applicant’s GP, stated that his medical reason for the exemption was insufficient, advising of what adjustments could be made to allow him to work and advised him of a special form of leave for COVID.
In response, the Applicant questioned was his reason was insufficient and was directed to speak to the Work Health Safety team who failed to contact him.
On 24 January 2022, the Applicant obtained a new contraindication form which limited the exemption to 6 months. This was sent to the Respondent and the same HR representative responded that the WHS team would review it and decide what adjustments could be made, advised more information may be required from his doctor, noted that he was to remain out of the workplace and advised that it may be difficult for him and thus offered the counselling services available.
On 28 January 2022, the Applicant received an email from a WHS team member who requested that the Applicant speak to his GP and complete a form attached. That day, the Applicant spoke to a HR representative who said that his exemption was not a good enough excuse to not be vaccinated and that he was to be counselled with a view of getting vaccinated.
The only medical evidence canvassed in the decision was a report of a psychiatrist, Dr Khan who had opined that the Applicant was anxious about getting the vaccine and by 28 January 2022 had felt unreasonably pressured, harassed, and dismissed by the Respondent in respect to its vaccination policy.
Decision
In regard to whether the actions taken by the Respondent were made with respect to the provision of employment benefits, Mr Carney for the Respondent submitted that the employment benefit was the advantage of being able to work when he was not vaccinated having regard to prevailing circumstances at the time. Mr Tanner for the Applicant submitted that working and earning a salary were not a benefit but were rights which he had been prevented from exercising.
Mr Tanner’s submissions, which echoed previous failed anti-vaccination suits in other jurisdictions, was dismissed with Member Isaksen referring Bell CJ in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299, determined that there is no right to work or a right earn a living. Rather than being a positive right, it is viewed as ‘a liberty which is not to be unreasonably impeded.’ (Nagle v Feilden [1966] 2 QB 633). Therefore, the Member formed the view that the Respondent’s action involved an employment benefit as the Applicant sought the benefit in being able to continue to work for the Respondent while he is not vaccinated.
Turning to the more pertinent issue, Member Isaksen referred to Sackville AJA in Northern NSW Local Health Network v Heggie [2013] NSWCA 255, who observed:
“Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed.”
In addressing the test of what is reasonable, Member Isaksen referred to Geraghty GCJ in Irwin v Director General of School Education NSWCC no.14068/97 (18 June 1998, unreported) who said:
“The test of ‘reasonableness’ is objective, and must weight the rights of employees against the objective of an employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
Member Isaksen formed the view that the Respondent had failed to act reasonably with respect to the implementation of its vaccination policy finding that it did not properly communicate or consult to the Applicant particularly from the introduction of the policy on 14 December 2021 to 28 January 2022.
This was because the Respondent never proffered an actual reason why his exemption was not valid, did not provide him timely responses to his questions, failed to explain why his early contraindication was invalid due to the timeframes being reduced for the exemptions from 12 to 6 months and contacting the Applicant while on annual leave to notify of a change in policy that ought to have been made before he went on leave.
The Member was cogniscant of the times with which the Respondent was operating within but did not regard the changing standards at the time, the nature of his exemption, or the wider responsibilities of the Respondent as factors that condition what action is reasonable.
Lessons for Employers & Insurers
As time passes, the effect of COVID-19 on workplaces slowly dissipates but the need to learn from prior experience remains ever present and employers ought to view this case as being noteworthy because the consideration of what is reasonable in section 11A does not factor in the responsibilities of the employer nor the unreasonableness of the Worker.
Although it would appear that this case was determined in a vacuum, void of wider considerations that any reasonable employer would be aware of, the Respondent’s communication with the Applicant was found to be deficient in conveying and providing reasons for its policies to the Applicant.
The decision makes little reference to the evidence submitted by the Respondent and while the Author is unclear as to whether this was because there was little in front of the Member or the Member simply chose not to include it in his decision, Insurers must attempt to obtain as much factual information to support the reasonableness limb of section 11A and also appropriate medical evidence to inform the Member.
This decision highlights the need for the employer’s actions to be reasonable, including in communicating the employer’s polies, such as in this case. Had the covid 19 vaccination policy been effectively and reasonably communicated, the outcome may have been different.
Contributor: Chris Smith
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.