The State of Tasmania (Department of Police, Fire & Emergency Management) v W. [2022] TASCAT 82 (2 August 2022)

The State of Tasmania (Department of Police, Fire & Emergency Management) v W. [2022] TASCAT 82

The State of Tasmania (Department of Police & Emergency Management) (Employer)

30 June 2022, written submissions finalised 8 July 2022

Entitlement to compensation - COVID-19 booster causing adverse reaction to worker - police officers strongly encouraged to be vaccinated by employer - opposing arguments about approach to be taken by Tribunal in determining liability - reasonably arguable case

Workers Rehabilitation and Compensation Act 1988;

St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90; Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2; Cane v University of Tasmania [1993] TASSC 98; University of Tasmania v Mary-Anne Cane [1994] TASSC 73, (1994) 4 Tas R 156; Usher v Coffs Harbour City Council [2022] NSWPICPD 9; Usher v Coffs Harbour City Council [2021] NSWPIC 196; The State of South Australia v Roberts [2018] SASCFC 25

The decision has been anonymised for the purpose of publication.

[2022] TASCAT 82

1. The worker is a police officer. He made a claim for workers compensation on 21 March 2022. In his claim form he referred to the injury or condition having occurred on 23 November 2021, and alternatively, having first been noticed on 17 March 2021. When asked in the claim form to describe how the injury or condition occurred, the worker wrote "reaction to first, second and third (Booster) COVID-19 vaccinations" and indicated that he had experienced shortness of breath, fast heart rate, chest pain, cough, vomiting and tiredness.
2. The claim for compensation was supported by an initial workers compensation medical certificate dated 17 March 2022 which confirmed the presenting symptoms that the worker had referred to in his claim for compensation. A provisional diagnosis of "post MRNA vaccine reaction" was provided.
3. The employer elected to dispute liability to pay compensation to the worker in relation to his claim, and referred its dispute to the Tribunal pursuant to s81A of the Workers Rehabilitation and Compensation Act 1988 (the Act).
4. The basis for the disputed expressed in the referral was:

The worker has suffered an injury, being a disease, to which employment has not contributed to a substantial degree in that it is not the major or most significant factor (s25(1)(b), s3(2A) of the Act).

5. Where an employer disputes a claim for compensation under s81A of the Act, the Tribunal is required to determine whether there is a reasonably arguable case to dispute the worker's claim.
6. The test for whether a reasonably arguable case exists was enunciated by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90:

A case will not be reasonably arguable unless the case itself is reasonable in the sense that there is a reasonable prospect of the claim being rejected following a final hearing......The very notion of a "reasonably arguable case", like the very notion of a "prima facie case", precludes a final determination of a disputed question of fact......On the face of s81A, a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected.

7. It is accepted that the employer bears the onus of demonstrating whether a reasonably arguable case exits concerning its liability to pay compensation to a worker (see, for example Lamont v MRD Supermarkets Pty Ltd [2016] TASSC 16). The employer's case need not be strong or compelling (Vos Construction and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38).
8. In relation to the onus upon an employer that disputes a claim under s81A, Estcourt J in Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2 specifically accepted the submission from counsel for the employer that "what the employer is required to prove is not that there is no liability under s25 of the Act but only that there exists, on the evidentiary material the employer relies upon in the s81A proceedings, a reasonable chance that the worker will be unable to discharge the onus of proof that will ultimately rest with the worker".

1. In support of the dispute the employer relied upon a report of Dr Rene Dupuche, Consultant Physician. Dr Dupuche saw the worker for a telehealth independent examination on 17 May 2022, and provided a report dated 27 May 2022. He took a history from the worker that the worker had received three Pfizer injections against COVID-19, in March 2021, April 2021 and November 2021.
2. In his report, Dr Dupuche set out:

[The worker] stated that he was perfectly well before the first Pfizer injection. He had no issues with work and had no particular medical problems. > > The vaccination for COVID-19 was mandatory for his employment. Whilst he may have had some concerns about this vaccination, he was not particularly apprehensive about receiving the COVID-19 vaccination. He did harbour some concerns about AstraZeneca, but this was never a proposed vaccination. There had been some discussion about the lack of Pfizer and therefore, the need for AstraZeneca, but it was never formally proposed that he would receive AstraZeneca. > > On 17 March 2021 he had his first Pfizer injection. It was two hours after this that he had his initial symptoms. He felt unwell. He had, amongst other symptoms, a migraine. He had had migraines in the past but not in recent times. Initial symptoms were those of dizziness and nausea for which he took Ibuprofen and Panadol. He tried to sleep it off for a while, but when he awoke and also on the next day, he was unwell. However, despite this he returned to night shift some 18 hours after his first injection. He was able to complete a night shift of some 7 days despite feeling unwell. The symptoms seemed to lessen and to be minor immediately prior to the second Pfizer injection. > > 7 April 2021, second Pfizer injection. He seemed to have a less severe adverse reaction to this but had headache and flu like symptoms. There were no cardiac symptoms at this time. He was able to continue to work. > > 23 November 2021, the third Pfizer injection (mandated). He had this a little late. The next day he was off work. He was troubled by dizziness, nausea and an inability to keep his food down. He took Panadol, Nurofen and stayed in a dark room. However, he developed shortness of breath, cough and pain on breathing. He put off going to the general practitioner for a while, but though December had cough, coughing fits, vomiting and choking. He tried to see the doctor. He had put this off initially. In January he was still unwell. > > On 24 January 2022, he had chest pain. > > On 25 January 2022, he went to the Emergency Department of the Royal Hobart Hospital. There he was investigated with an ECG and blood tests, both of which were unremarkable. He had a chest x-ray which appeared normal. He had anxiety testing which apparently was also normal. He was discharged in the early hours of 26 January 2022. > > He was subsequently sent to a cardiologist where he had tests including echocardiogram and MRI scanning. He also had lung tests and asthma tests, and no asthma was determined. There was however no provocation tests. The MRI scanning appeared to show an area within his myocardium consistent with an area of myocarditis. No other abnormality apparently found.

3. Dr Dupuche noted that the worker had been referred to a respiratory specialist and rheumatologist, and continued under the care of his cardiologist, and also was to be involved in a post Pfizer pericarditis and myocarditis study to be performed in New South Wales.
4. On the basis of the cardiologist's report that was available to Dr Dupuche, the findings on MRI scanning and the worker's symptomatology Dr Dupuche outlined under the heading "Diagnosis":

(i) Post Pfizer vaccination reaction/syndrome.

(ii) Myocarditis - a small area apparent.

(iii) A respiratory disorder not diagnosed.

(iv) Aggravation of migraine.

(v) Psychological reaction - probable adjustment disorder and depression.

It is clear that this man was very well prior to the Pfizer injection and had no particular fear of this injection. Subsequent to the injection, and chronologically associated with these injections he has had the development of a number of symptoms, which are as per the history above and are probably indicative of both a physical affect on the heart and lungs, albeit of mild degree, along with a development of some psychological factors.

2. It was Dr Dupuche's opinion that the worker remained totally incapacitated for work.
3. Additionally, the employer relied upon a number documents that formed part of the State Government's, and the Department's response to the COVID-19 pandemic.

• Message from the Head of State Service about the Tasmanian Government vaccination roll-out dated 16 February 2021, which, in part, advises:

Everyone in Tasmania will have the opportunity to get a free COVID-19 vaccine this year. By getting the vaccine when it is available to you will help reduce the risk of COVD-19 as well as enable us to all to live our everyday lives more freely.

• Details from the State Service Management Office information sheets relating to the roll-out of vaccinations to the State Service, particularly Tasmania Police, dated 4 March 2021

The roll out strategy has been developed by the Department of Health and is based on medical advice that prioritises individuals in Tasmania who are vulnerable to the coronavirus are at increased risk of exposure, or who are working in jobs critical for managing the pandemic response... Police Officers will be included in [the first two phases of the roll-out, Phase 1A and Phase 1B] > > Why should I get a vaccine? > > Vaccination is the most effective way to protect against injections diseases...When you get vaccinated, you are protecting yourself and helping to protect the whole community... > > Are the vaccines mandatory for police? > > No. All employees are strongly encouraged to have the vaccine (subject to individual medical needs and any other risk factors). It is possible that in the future, vaccination against COVID-19 might become a requirement for employees in certain high risk work-places. Tasmania Police has an obligation...to ensure the health and safety of workers, and you therefore may be considered not suitable to conduct duties that present a higher risk of exposure ie Hotel Quarantine... > > Am I eligible for overtime to get the vaccine? > > No. Vaccinations are not a mandatory requirement of your employment. Tasmania Police members are being provided with the opportunity to receive the vaccine early in the roll out because of our occupation. Members are encouraged to take up this early opportunity to be vaccinated, as it contributes to a safe and healthy workplace, and provides additional safety to family and friends...

[Thereafter, links and details were provided for additional information to be sought, including Tasmanian Government and State Public Health information, and information about the vaccine roll-out, approval of vaccine use in Australia and information about vaccines from reputable sources, such as the World Health Organisation]

• Extract from The Police Gazette dated 4 March 2021: 'COVID-19 Vaccinations'

Over coming weeks all police will be eligible for COVID-19 vaccinations as part of Phase 1B of the vaccination rollout, and important step in ensuring our safety and the safety of the community > > ...members should expect to receive a call from Public Health regarding booking appointments in the next few weeks... > > I strongly encourage all members to have the vaccine and help protect themselves and the community from COVID-19

• A vaccination update from Tasmania Police dated 9 April 2021:

...Phase 1B of the COVID-19 Vaccine roll-out in Tasmania includes approximately 180,000 people. The Department of Health (DoH) have stated that it will take up to four months to complete, with no priority given to Police Officers over other persons in this phase. > > A list of police officers was compiled with information from each district and forwarded to the DoH to assist with vaccination planning and appointments. DoH are working through the 180 000 people in their list, and will contact you at some point in the next four months. Please do not be alarmed if others within your workplace have been called and not you....

• Message from the Head of the State Service dated 9 April 2021 - advising about a change in advice about the use of AstraZeneca vaccines for people under 50, and what alterations there would be to the vaccine roll-out
• Email from the Acting Deputy Secretary, Department of Police, Fire & Emergency Management (DPFEM) dated 13 April 20221, with the subject heading : Contact details requested - COVID-19 vaccine rollout

The Department of Health (DoH) has asked for the contact details of all DPFEM employees who work in frontline and public-facing emergency services buildings, to help inform the ongoing rollout of the COVID-19 vaccine. > > You have been identified as an eligible staff member, however, we need further information from you to assist DoH with vaccination planning... > > [Recipients are asked to reply to the email with contact details and advised they will be contacted at some stage by DoH]

• Email from Secretary, DPFEM dated 27 May 2021 with the subject heading: Key message - COVID-19 Vaccination

I am pleased to advise that all staff within the [DPEFM] are now eligible for a free COVID-19 vaccine. > > Getting a COVI-19 vaccine will help protect you , your family, your friends, and the wider Tasmanian community, so all staff members are strongly encouraged to book in as soon as possible. > > To make an appointment phone the Tasmanian Public Health Hotline ...and advise them you are DPFEM employee... > > Higher vaccination rates make outbreaks much less likely. It also reduces the need for preventative measures, such as border closures and travel restrictions which reduces the health, social and economic impacts of COVID-19....

• Extract from The Police Gazette dated 27 May 2021: 'COVID-19 vaccine encouragement'

The COVID-19 vaccine roll-out is continuing in Tasmania with many of our police members having received their first and second doses. I'm pleased to announce that as of today all DPFEM staff are now eligible for the vaccine. > > It is very pleasing to see the overwhelming majority of our police understand how important the vaccine is to our health , the wider community, and the return to normal life on a global scale and are getting vaccinated.... > > At every opportunity I encourage those in my social and professional circles to get vaccinated as soon as they become eligible. > > As police we are in a privileged position of trust and authority and viewed as a pragmatic source of information. I encourage you to channel that trust and pragmatism and encourage those around you to get vaccinated as soon as they're eligible...

• Message from the Head of the State Service dated 18 June 2021 - advising about a change in advice about the use of AstraZeneca vaccines for the age-group 50 - 59 years, and how that was going to be addressed.
• Extract from the Police Gazette dated 14 October 2021:

Anecdotally the vast majority of our workforce has been vaccinated... > > I encourage those of you who haven't been vaccinated to do so as soon as possible... > > Many of us work in vulnerable communities and we play a vital role in leading by example to encourage Tasmanians to get vaccinated...

• Extract from the Police Gazette dated 28 October 2021: 'Mandatory Vaccinations'

With the recent announcement by the Premier that borders will be re-opening on the 15 December, it is inevitable that we will have to adapt to living with COVID in our community. In order to ensure that we have a safe workplace and we are able to deliver policing services to the community mandatory vaccination for all members is currently being considered. There are a number of vulnerable risk settings that police officers are exposed to as part of their daily tasks that provide a strong rationale for members to be fully vaccinated. Being fully vaccinated is your best defence against the virus and it helps to protect you, your colleagues, families and the broader community. A formalised departmental position will be decided upon shortly. In the meantime, if you are not vaccinated, you are strongly encouraged to do so as soon as possible....

• Extract from The Police Gazette dated 11 November 2022:

Anecdotally, we know there has been a strong take up of the vaccine across our workforce..... > > If you haven't yet take up the opportunity - please visit a clinic soon and roll up your sleeves. > > Now we are asking that you have a vaccination - the most effective thing you can do right now to protect yourself and your community ahead of borders reopening. > > An important next step for us is to be able to assess the vaccination take up across the Department. > > That knowledge will help determine any additional measures we need to take to protect you in the workplace. I am asking all employees to indicate their current vaccination status. We're not asking for proof of vaccination at this time.

• Email from the Secretary DPFEM dated 11 November 2021:

With Tasmania's plan to re-open borders on 15 December, being fully vaccinated against COVID-19 to help protect ourselves and the community has never been more important... > > If you haven't done so already, I strongly encourage you and those around you to get vaccinated as soon as possible..... > > We'll be updating our COVID-19 risk assessment and revising our COVID-19 safety plan in the coming weeks to ensure our ongoing COVID-19 preparedness. Consultation will occur from 15 November and will seek your feedback during this process. > > I recognise many of you have already rolled up your sleeve for vaccination. I am now asking all employees to indicate their current vaccination status. We are not asking for proof of vaccination at this time. > > It's an important step for us to be able to assess the vaccination take up across the Department. > > We'll use this information to better understand our current risk profile and determine any additional workplace controls required to mitigate COVID-19 risks to our people...

• Email from Secretary DPFEM dated 19 November 2021 to staff re vaccination status update:

I'd like to thank those of you who have responded to our request in relation to vaccination status. We have had over 1500 employees and volunteers provide their vaccination status information. This data provides us with helpful insight into our workforce, and as further responses are received we will continue to inform our current risk profile and consider any additional workplace controls required to mitigate COVID-19 risks to our people. > > If you haven't already done so, I strongly encourage you to provide your vaccination status information..... > > The importance of getting vaccinated cannot be underestimated and I strongly encourage anyone who hasn't already done so to get vaccinated as soon as possible....

• First attachment to Secretary DPFEM email (above) dated 19 November 2021:

COVID-19 Vaccinations Consultation Paper > > Proposal > > It is proposed that DPFEM will implement a COVID-19 vaccination policy which requires all workers to be vaccinated against COVID-19 and for them to provide satisfactory evidence of vaccination status. > > Exemptions will be considered for those workers who are unable to be vaccinated against COVID-19 on medical grounds.... > > Proposed Impacts for Workers > > Under the proposed DPFEM COVID-19 vaccination policy workers who are vaccinated for COVID-19 will be required to submit satisfactory evidence of their vaccination status. Workers are required to have a first dose vaccination by 15 December 2021 and a second dose vaccination by 15 January 2021..... > > Consultation Approach > > We are commencing consultation with our workers and their representatives regarding the proposed COVID-19 vaccination policy..... > > A copy of the proposed DPFEM COVID-19 vaccination policy is attached. The proposed policy has been informed by the attached COVID-19 risk assessment...... > > Next Steps > > We will continue to monitor the COVID-19 situation and to monitor the effectiveness of our controls and implement additional controls when needed in accordance with public health advice in order to mitigate risks to our workers and ensure their health and safety, as reasonably practicable. > > With the exception of workers who are granted an exemption or extension, it is my expectation that our workers will meet the requirements of the proposed policy in order to protect their own health and safety and the health and safety of others in the workplace as reasonably practicable. I encourage you to provide your views and feedback on the proposed policy.

• Second attachment to Secretary DPFEM email (above) dated 19 November 2021:

Draft DPFEM COVID-19 Vaccination Policy > > Policy Statement > > The Department of Police, Fire and Emergency Management is committed to ensuring the health, safety and wellbeing of our people. > > It is a requirement of attending any DPFEM workplace, undertaking duties on behalf of DPFEM or participating in DPFEM training activities that workers must be fully vaccinated against COVID-19. > > This requirement applies unless a worker has been granted an exemption or extension by DPFEM....... > > Compliance > > Compliance with this policy is a condition of accessing any DPFEM workplace, undertaking duties on behalf of DPFEM and/or participating in DPFEM training activities. > > Workers who do not meet the requirements of the proposed DPFEM COVID-19 vaccination policy or who do not have an approved exemption or extension will not be permitted to attend DPFEM workplaces or participate in DPFEM training activities. > > Non-compliance may result in implementation of additional health and safety measures, adjustments to work duties and/or locations, stand down from duties, termination of volunteer membership and termination of employment. > > Existing workers: > > Workers are required to have had a first dose of COVID-19 vaccination by 15 December 2021, and to be fully vaccinated by 15 January 2022. [1]

• Third attachment to Secretary DPFEM email dated 19 November 2021:

Work Health and Safety COVID-19 Risk Assessment DPFEM.

• Press release from the Office of the Premier, Peter Gutwein, dated 9 December 2021

Tasmania's vaccination program remains on track as we continue to draw closer to re-opening in six days on December 15... > > We will be mandating vaccine broadly across the State Service, as well as Government businesses, State owned companies and some statutory and State authorities, following the finalisation of risk assessments conducted, and that for the State Service, Heads of Agencies have written to staff on the same day outlining the outcomes of their respective risk assessments and of the expectations moving forward, including the date by which staff will need to provide evidence of being sufficiently vaccinated, which will vary across each individual agency depending on organisational needs. > > Agency Heads will also work with individual staff members who choose not to be vaccinated, to consider what options may be available.

• An email from the Secretary, DPFEM dated 9 December 2021, headed "Vaccination Status Update"

Mandatory COVID-19 vaccinations for all DPFEM staff and volunteers > > With Tasmania's borders opening next week, now is the time to ensure you are fully vaccinated against COVID-19 to help protect ourselves and the community... > > The recent emergence of the Omicron variant further emphasizes the importance of vaccination, boosters, and general prevention strategies needed to protect against COVID-19. > > We all need to keep safe while living with COVID -this means ensuring we are fully vaccinated, having booster shots, practicing physical distancing and appropriate hygiene, and staying home if you're sick, to help keep yourselves and those loved ones around you safe. > > DPFEM has implemented a range of strategies and controls to best protect the health and safety of our workers during the COVID-19 public health emergency. > > Consistent Public Health advice is that vaccination is one of the best ways of reducing transmission of COVID-19 and reducing the likelihood and severity of significant illness and death. > > Information voluntarily provided by employees and volunteers is encouraging and indicates a high rate of vaccination of DPFEM workers, with over 90% of individuals being vaccinated against COVID-19. This information also identified a significant number of people who are particularly vulnerable to severe illness from COVID-19, with approximately 10% of workers identifying a vulnerable status. This is a concerning percentage of our people who are particularly vulnerable to significant health impacts from COVID-19. > > As an organisation, we have a duty of care to our people and to the community to help keep each other safe from COVID-19. > > We recently presented a draft COVID-19 vaccination policy and COVID-19 risk assessment for managing COVID-19 within our workplaces to ensure the health and safety of our people. Thank you to everyone who took the opportunity to express their views. Your feedback reflected that vaccination is a primary control in conjunction with other risk mitigation measures, and we have considered this feedback in reaching a DPFEM position. As a result, the COVID-safety manual is being updated accordingly to reflect all controls when the borders reopen. > > Following this consultation, I am announcing that all DPFEM staff and volunteers will-be required to have a first dose vaccination, as a minimum, by 20 December, and a second dose vaccination by 20 January 2022. > > I now ask that you provide evidence of your vaccination status to verify that you have been vaccinated against COVID-19, and to formalise the Indication of vaccination status if already provided... > > > > For members who do not provide evidence [of their vaccination status] by 20 December 2021, I may determine that you are to be stood down in accordance with of the . If you do not provide evidence within the 7 day stand down period, you may be suspended without pay in accordance with of the .... > > If you have not been vaccinated, we strongly encourage you to get vaccinated as soon as possible. You can find all the information you need to get vaccinated at coronavirus.tas.gov.au - clinics are taking walk-ins so please take up the opportunity. > > It may be necessary in the interim before you are fully vaccinated for additional controls to be established to ensure health and safety. These controls may include (but are not limited to) a requirement to wear a face mask while at work, or adjustments to work duties and/or work location. > > If you would like to find out more about COVID-19 vaccinations, a reminder that there is a Q & A session ... tomorrow at 1pm. > > If you've got any questions about what this decision means for you, please contact . > > Take care > > Darren Hine > > Secretary DPFEM > > Police Commissioner > > State Controller

1. The worker, prior to the s81A hearing, provided a statement to the Tribunal and to the employer. Counsel for the employer sought to cross-examine the worker on his statement, and accordingly the worker attended the hearing of the employer's referral.
2. The worker's statement set out the following:
   1. I commenced employment as a police officer with the Department of Police, Fire and Emergency Management on 24 August 2015.
   2. Prior to joining Tasmania Police, I was in the Australian Armed Forces.
   3. In early 2021, I was advised that Tasmania Police, as frontline workers, would be in the lA role out of COVID vaccinations being made available. I was advised the vaccinations would be available to Tasmania Police first, prior to it being made available to most other government departments.
   4. Tasmania Police strongly encouraged members to become vaccinated due to the increased risk from being frontline workers. Tasmania Police members were encouraged to have the vaccine to protect ourselves, our family and the community. Email correspondence from the Commissioner was disseminated.
   5. By reason that I was at an increased risk of COVID in my role as a constable with Tasmania Police, and that Tasmania Police was strongly encouraging members to be vaccinated, and that vaccinations were being made available to us first, I proceeded with having my first vaccination on 17 March 2021 (the first injection)
   6. I felt unwell after the injection but I had no time off work.
   7. I had the second vaccination on 7 April 2021 (the second injection). The second injection was given during work time, and I was permitted by my superior to leave my duties at Glenorchy Uniform to have the second injection. I had the injection at Ward 3a at Royal Hobart Hospital. I had to let my supervisors know where I was and I was away from my duties in Glenorchy to have the injection. I was paid for the time away from duties to have the second injection.
   8. I had a mild headache and flu-like symptoms following the second injection but I had no incapacity for work.
   9. I had a booster injection on 23 November 2021 (the third injection). This was shortly before it was mandated for Tasmania Police to be vaccinated. I was given leave by my supervisors from my duties at the Coroner's Office. I walked to the COVID Clinic on the corner of Liverpool Street and Elizabeth Street and after the third injection I returned to work. I had the next day off sick with flu like symptoms and a severe headache.

1. There is no dispute between the parties for the purposes of the s81A referral that the worker has suffered an injury, which is a disease, and which resulted from an adverse reaction to the Pfizer vaccination against COVID-19.
2. The parties are also in agreement that the evidence points to the adverse reaction having been caused by the third booster injection which the worker had in November 2021.
3. The employer says it is reasonably arguable that the worker's vaccination, and particularly the third booster, were not 'employment' for the purposes of s25(1)(b) of the Act, that is, that having the vaccine was not a part of the worker's employment duties, nor could the vaccinations be said to be reasonably ancillary or incidental to the performance of the worker's duties.
4. In that respect, the employer refers to the dicta of Underwood J (as he then was) at first instance in Cane v University of Tasmania [1993] TASSC 98 where his Honour stated:

There can be no doubt that "employment" bears the same meaning wherever it appears in s25(1).....the Courts have frequently construed the meaning of "employment" as enacted in workers compensation legislation. It has long been recognised as meaning not only the performance of the actual work which a person is required to do, but includes "the natural incidents connected with the class of work".

5. His Honour went on to observe that the Commissioner's view that "employment" appearing secondly in s25(1)(b) was confined to the performance of work the appellant was required to do by the terms of her duty statement and did not include all that which was reasonably incidental to or ancillary to the performance of those duties was an erroneous view.
6. Similarly, counsel for the employer referred to the decision the Full Court of the Supreme Court on appeal in same case[2] where Wright J observed that there are many cases in which the word "employment" extends beyond mere duties of employment to matters "naturally incidental to the contract of employment".
7. In submitting that it is reasonably arguable that the vaccinations, and particularly the third booster, were not reasonably incidental or ancillary to the performance of the worker's duties as a police officer, the employer notes that at the respective times the worker had his first vaccination (17 March 2021) and his second vaccination (7 April 2021) the worker was not required by his employer to have either injection. Further, at the time the worker had the third booster injection, he was not required to do so by his employer, and he has never been required to do so.
8. The employer submits that because none of the vaccination injections received by the worker were something that he was required to have, at the time, as part of his employment, they were administered as a matter of choice on the part of the worker on each particular occasion.
9. The employer accepts that the worker was, along with the other employees of the Department, strongly encouraged to be vaccinated, but submits that the question of 'inducement' or 'encouragement' by an employer is relevant only to an injury that is not a disease pursuant to s25(1)(a) of the Act.
10. In the alternative, the employer says that if the relevant question is whether the worker's employment was the major or most significant contributing factor to the worker's decision to have the booster vaccination, the employer submits that it is reasonably arguable that it was not. In support of this submission, the employer points to evidence of the worker given in the hearing that he had the vaccine - and submits that this evidence was inconsistent with the evidence given by the worker that he had doubts about the safety of the vaccine and would not have been vaccinated had it not been for the encouragement of the employer.

It was the activity of having the flu injection which had been organised by the [employer] at the drive through clinic and which was administered in an incorrect position that resulted in the injury to [the worker's] right shoulder. [3]

14. On appeal to the Presidential Division, there was no challenge to the member's finding that the employment was a substantial contributing factor to the injury. [4]
15. Counsel for the worker also referred to the decision of the Full Court of the South Australian Supreme Court in The State of South Australia v Roberts [2018] SASCFC 25. The worker in that case was staying in accommodation provided by her employer whilst she was on a teaching placement in a remote area of South Australia. She was bitten by a mosquito whilst staying in the premises provided by her employer. As a result of the mosquito bite she was diagnosed as having suffered inflammatory polyarthritis. The Full Court of the South Australian Supreme Court, in dismissing the appeal, confirmed that there was no error in findings by the full bench of the South Australian Employment Tribunal that the worker's employment was a "significant contributing cause" of her injury.
16. Ultimately, the worker says that the employer has identified no factors that are not related to the worker's employment which contributed to the worker's decision to be vaccinated, and on that basis it is submitted the employer has failed to establish that there is a reasonably arguable case to dispute the claim.

Has the employer established that it has a reasonably arguable case?

1. S25 of the Act provides:

(1) If in any employment - > > (a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or > > (b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A) - > > his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act......

2. The central issue in this dispute is the approach that the parties respectively say ought to be taken in determining whether the worker has, in accordance with s25(1)(b), suffered an injury to which his employment contributed, to a substantial degree, within the meaning of section 3(2A) of the Act.
3. The employer submits that having the vaccinations against COVID-19 were arguably not reasonably incidental or ancillary to the worker's employment duties, and thus the employment could not thus have contributed to the injury to a substantial degree.
4. The employer acknowledges the strong encouragement that was being provided to police officers to be vaccinated at the time the worker had his first and second shots, but says that is irrelevant in the circumstances, and ultimately the evidence is that the worker had all three vaccination injections as a result of making his own decision on each occasion.
5. The worker says that the question is whether the employment substantially contributed to the worker's decision to get vaccinated, and there is no evidence that the decision was made by the worker as a result of anything other than the employer's encouragement to do so.
6. The employer has made some additional submissions about some of the evidence given by the worker which it says could arguably amount to an alternative, non-work reason for having the vaccinations, but in the circumstances I do not need to go into those submissions.
7. All the employer needs to do in a s81A hearing is to show that there is a reasonable chance that the worker might not ultimately succeed at a final hearing. I do not need to determine whether the employer's argument about the approach to be taken in determining the ultimate question of liability is correct. I only have to decide, at this point, whether it may be correct.
8. The employer's case, as I have briefly set out in this decision, appears to have some merit. Whether or not it would ultimately succeed at a final hearing is a moot point. At this stage, I am satisfied that if the employer's argument were to carry the day, there is a reasonable chance that the worker would not be able to establish that the employer is liable for his injury.

...the proper construction of the phrase "employment was a significant contributing cause of the injury" cannot be derived by transposing the reasoning in cases that considered a different form of words and arose in a different statutory context.

10. I determine that the employer has demonstrated that it has a reasonably arguable case to dispute the worker's claim for compensation. There will be orders pursuant to s81A(3)(c) and (d).

[1] "Fully vaccinated" is defined in the draft DPFEM COVID-19 Vaccination Policy as "having obtained the manufacturer's recommended dosage of any Approved Vaccine. Eg if a two dose schedule is recommended by the manufacturer, a person will be fully vaccinated when they have received two doses of the vaccine."

[2] University of Tasmania v Mary-Anne Cane [1994] TASSC 73, (1994) Tas R 156

[4] Paragraph 32. The issue that was the subject of appeal was the member's finding that a shoulder surgery performed on the worker was reasonably necessary as a result of the particular injury.

[5] The State of South Australia v Roberts (Ibid) at paragraph 80