Psychological injury claims after employer implemented vaccine mandates
In August 2021, the NSW government introduced the Public Health Order 2021 (COVID-19 Vaccination of Workers), which established mandatory COVID-19 vaccinations for health sector workers along with 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 the employer’s implementation of the above vaccination public health order.
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)  NSWPIC 611 (3 November 2022), involved the Department of Education (the respondent) sending an email to all staff, including the injured worker, in August 2021 advising of the above NSW Health Order.
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 8 November 2021.
In October 2021, the worker submitted a NSW worker’s 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.”
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.”
The PIC Member did go on to explain how they considered that the actions of the employer were 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  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 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 is 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. The Member, in this case, did not find it appropriate to discuss whether or not the actions of the employer were reasonable.
It is important to note that in both of the 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 Section 11A 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 is for the insurer to prove, rather than the injured worker being required to prove, that the employer’s actions were unreasonable. It remains to be seen what effect on a similar claim, if any, the respondent (the insurer) providing supportive independent medical evidence would have.
What does this mean for workers’ psychological injury claims related to vaccine mandates?
Both of these cases do not seek 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 as the sole result of the vaccine mandate.
Rather, these cases confirm the established principles of whether an employer has taken reasonable action with respect to discipline or dismissal. You can read more about NSW psychological injury claims in our previous blogs:
- NSW worker's compensation claims for psychological injury
- Reasonable action defence in NSW worker’s compensation claims for psychological injury
Get help from a worker’s compensation lawyer in NSW
Worker’s compensation claims for psychological injury can be complex. If you have suffered a psychological injury as a result of your employer’s actions, it’s important to seek advice from a lawyer experienced in the NSW worker’s compensation system. Seeking advice and assistance early can maximise the success of your claim.
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This article relates to Australian law; either at a State or Federal level.
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