Lawyer for Diane Dawking says he has dozens more teachers interested in pursuing similar action
A Sydney teacher sacked for not complying with New South Wales’s vaccination rules has been awarded ongoing workers’ compensation payments of $1,378 a week after she suffered “psychological injury” in the way the mandate was enforced.
Her case has been described as a precedent by her lawyer, with dozens more former teachers already lining up to pursue similar action against the state’s education department.
In a judgment handed down in the NSW personal injury commission on Thursday, the former Canada Bay special education teacher Diane Dawking, 53, was awarded ongoing compensation and backpay over the way the vaccination mandate was communicated ahead of her dismissal.
Court documents show Dawking was diagnosed with acute stress reactions/disorder by a psychologist in October last year as a result of Covid-related restrictions and the vaccine mandate, which was first mooted in an email by the department in August, to take effect in November.
The teacher’s uncertain employment status was found to be “at least a substantial contributing factor” to her psychological injury.
Dawking claimed that as a result of the mandate “she started to suffer a number of symptoms, including helplessness and hopelessness, loss of interest in daily activities, loss of weight, sleep changes, anger and irritability”.
She was certified as having no capacity to work from 9 September, and a subsequent psychiatric assessment in December 2021, after the vaccine mandate had come into effect, found Dawking was suffering from “adjustment disorder with anxious distress” and was unable to work.
According to the judgment determination, the psychiatrist found the department was the main contributing factor in the diagnoses due to “constant coercion and discrimination to receive vaccine as a mandatory requirement, refusing Mrs Dawking medical exemption, and possible threat to her employment with no support provided”.
In January the department emailed Dawking to say her employment was terminated on 8 November 2021.
Dawking told the commission her symptoms worsened over time as she received successive emails from her employer. She claimed it affected her ability to provide for her family, including caring for her sick husband, and argued that she could have been provided alternative duties “which do not involve close contact with teachers and students such as teaching via Zoom”.
The department argued that the initial email alerting the teacher to the impending mandate, sent to staff about 10 minutes before the premier announced the policy at a press conference, was “respectful”, “as comprehensive as possible” and “polite”.
The department also said that while the impending vaccine mandate had upset the teacher, it was as a result of the government’s actions, not those taken by the department in enacting them.
Questioned on why there was never a discussion with Dawking about continuing to work remotely as she had for the previous 12 to 18 months, a representative from the department said most employees were working from a school site.
Dawking’s lawyer, David McCabe, said the case was about how the mandate was implemented.
“This is a precedent case for workers in NSW who are threatened with disciplinary action or potential dismissal by employers because of not being doubly vaccinated,” he told Guardian Australia.
“Employers are not forced to take this approach when implementing the public health order. It will always be a determination as to whether the employer acted in a reasonable manner when taking such action.”
If Dawking is unable to return to work, the payments could total more than $1m by the time she reaches the retirement age of 67.
McCabe said he had another two cases before the court and a further 47 teachers “who are waiting on the outcome of these three test cases”.
On Friday, the department said it was legally required to enforce the public health order.
“We understand this decision may be the subject of an appeal by the department’s claims manager,” a spokesperson said.
The department has allowed unvaccinated staff – except those involved in schools dedicated to students with special needs or disabilities – to return to work since August. However, 295 staff were dismissed for non-compliance with the mandate, 504 “separated” from the department and 695 had their contracts terminated.
The Maurice Blackburn employment law principal, Giri Sivaraman, said the case highlighted the importance of the way employers communicated issues.
“No matter how big the crisis, you cannot have a knee-jerk response where you act in a dictatorial fashion towards employees,” he said.
“You still need to consult with your workforce, consult with unions, talk about the various possibilities that might be available at the time.”