*The contents in this blog relates to legislation in New South Wales.
With the NSW state government’s introduction of mandatory vaccination for health and aged care workers, some workers who have chosen not to receive the vaccinations have been forced out of their employment.
This has caused significant stress and anxiety for some unvaccinated workers, with some potentially developing a psychological illness (for example, depression, generalised anxiety disorder, or an adjustment disorder).
Generally speaking, if a worker sustains an injury at work, they can lodge a workers compensation claim against their employer. However, under the workers compensation legislation, no compensation is payable for a psychological injury where an exception applies under section 11A of the Workers Compensation Act 1987. In order to rely on the exception, an employer must satisfy a two-pronged test: firstly, that the injury was wholly or predominantly caused by the employer’s ‘reasonable action’, and secondly, that the action was ‘with respect to’ a ‘transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers’.
If a worker’s psychological injury was sustained wholly or predominantly from being terminated because they chose not to receive the COVID-19 vaccination, their employer is likely to rely on the exception by contending that the injury was caused by their ‘reasonable action’ ‘with respect to’ the worker’s ‘dismissal’ and thus deny compensation to be payable.
Whether an employer will succeed in arguing their actions were ‘reasonable’, will likely depend on a number of factors, including whether the dismissal was lawful, or whether it was really necessary for the worker to be terminated e.g. could they properly perform their role from home without endangering the aged care community? The individual circumstances of each case will determine whether the employer’s actions were reasonable.
If the ‘action’ that caused the worker’s injury was purely the termination itself, it is likely that the action was ‘with respect to’ the dismissal. However, sometimes, a worker’s psychological injury is caused by a number of contributing factors at work that occurred over time (that may or may not be reasonable), including the termination, that all cumulatively resulted in the injury. For example, a worker may have been bullied by their employer over the course of their employment leading up to and until they were terminated. The prolonged bullying may have been the cause of the injury, with the termination being the ‘straw that broke the camel’s back’. Or, the way the worker was treated leading up to the termination may have been the real cause of the injury, for example, if the worker was ostracised in front of their colleagues and labelled an ‘anti-vaxxer’. In these circumstances, the injury may not be considered to have been ‘wholly or predominantly’ caused by the employer’s ‘reasonable’ action ‘with respect to’ the dismissal.
In summary, whether a worker can lodge a workers compensation claim for a psychological injury sustained as a result of being terminated for refusal to be vaccinated, will depend on the individual circumstances of their case. Thus, we recommend speaking with one of our experienced workers compensation lawyers about your situation.
If you are suffering from a psychological injury at work as a result of the way your employer has dealt with COVID-19, contact Turner Freeman Lawyers on 13 43 63, to arrange a free and confidential consultation.
See ‘Vaccination requirements for workers’, NSW Government (Web Page, 17 September 2021) <https://www.nsw.gov.au/covid-19/health-and-wellbeing/covid-19-vaccination-nsw/vaccination-for-workers>; ‘COVID-19 vaccination: Information for clinicians in NSW’, NSW Government Health (Webpage, 15 September 2021) <https://www.health.nsw.gov.au/Infectious/covid-19/vaccine/Pages/clinicians.aspx>.