Ahmadi v New Evolution Ventures Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ahmadi v New Evolution Ventures Australia Pty Ltd [2025] NSWPIC 402
APPLICANT:	Pashtoonyar Ahmadi
RESPONDENT:	New Evolution Ventures Australia Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	13 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical treatment; accepted psychological injury; respondent conceded applicant had no work capacity; respondent relied on section 11A defence; action as to retrenchment/dismissal; after matter had proceeded to hearing and decision reserved respondent sought to re-open and adduce further evidence as to reasonableness of its action; opposed by applicant; Davis v Council of the City of Wagga Wagga, Mason v Demasi, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Hamad v Q Catering Limited, Irwin v Director General of Education, Northern New South Wales Local Health Network v Heggie, and Personal Injury Commission Act 2020 considered; Held – application to re-open refused; applicant’s injury predominantly caused by respondent’s action with respect to retrenchment; respondent’s action not reasonable; award for applicant of weekly benefits and medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay to the applicant weekly benefits compensation as follows: (a) from 27 March 2024 to 26 June 2024, pursuant to s 36 of the Workers Compensation Act 1987, at the rate of $2,301.85 per week; and (b) from 27 June 2024 to date and continuing, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $1,938.40 per week. 2. The respondent is to pay the applicant’s medical and related expenses, pursuant to s 60 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Pashtoonyar Ahmadi (Mr Ahmadi/ “Pash”), was employed by the respondent, New Evolution Ventures Australia Pty Ltd (NEV) as a finance manager.
The applicant has sustained a psychological injury arising out of or in the course of his employment. The deemed date of injury is 26 March 2024, the date on which the applicant attended a meeting with Ms Selena Afeaki (director and chief executive officer (CEO)) in which he was advised that his position was to be made redundant.
The applicant’s position was made redundant on 27 March 2024.
The applicant’s psychological injury is claimed to be due to the aggravation, acceleration, exacerbation, or deterioration of a disease.
The applicant apparently made a claim on 29 April 2024, with the date of injury claimed to have been from 2012 to 2018.
On 29 August 2024, the respondent’s insurer, EML, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant had sustained a psychological injury; that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the applicant’s disease injury; and that the applicant was entitled to either weekly benefits or medical expenses.
EML also maintained that the applicant had failed to give notice of injury or make a claim within the periods required pursuant to ss 254 and 261 of the 1998 Act. (EML had recorded the date of injury as 20 December 2018).
In addition, EML relied on s 11A of the Workers Compensation Act 1987 (the 1987 Act), maintaining that, if the applicant had sustained a psychological injury, it was wholly or predominantly caused by the respondent’s action with respect to retrenchment and/or dismissal.
By letter dated 25 November 2024, the applicant’s solicitors requested on his behalf that EML review its decision.
On 9 December 2024, EML advised the applicant’s solicitors that its decision had been maintained and amended. EML conceded that the applicant had sustained a psychological injury, to which his employment was the main contributing factor.
EML continued to rely on a defence to the claim pursuant to s 11A of the 1987 Act, confirming it relied on the respondent’s action with respect to retrenchment and/or dismissal.
EML was not satisfied the applicant had met any of the exceptions provided for by ss 254 and 261 of the 1998 Act and continued to maintain that the applicant had not complied with the requirements of those sections.
The applicant lodged an Application to Resolve a Dispute (the Application) on 17 March 2025.
The applicant claimed to have sustained injury on the deemed date of 26 March 2024.
The applicant claimed that he had been employed by the respondent as finance controller/manager and Chief Financial Officer (CFO) between 2009 and 26 March 2024 (deemed). In or about February 2018, the applicant began to be scrutinised and micromanaged by his supervisors, who inappropriately raised issues about his race and religious practices.
“Further”, the applicant was given unreasonable expectations and unrealistic timeframes that were impossible to fulfil, given that he was given directions from multiple departments, which were not communicating with each other about his workload.
“Subsequently”, the applicant was pressured into resignation by the CEO and decompensated when he was subjected to unfair treatment and humiliation by the CEO.
The applicant claimed that, as a result, he sustained a psychological injury, namely major depressive disorder (MDD) with anxiety.
The applicant claimed weekly benefits compensation from 29 August 2024 to date and continuing; and future medical expenses of $10,200.
The respondent lodged its Reply on 7 April 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the respondent has a defence to the claim pursuant to s 11A of the 1987 Act, relying on its action with respect to retrenchment and/or dismissal.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 30 April 2025. Mr Kardum appeared for the applicant, who was present. Ms Zeng and Mr Murphy appeared for the respondent, instructed by Ms Brodigan of EML.
The applicant confirmed that he relied on a deemed date of injury of 26 March 2024, and would seek a general order for medical expenses, pursuant to s 60 of the 1987 Act.
The respondent confirmed that it did not dispute that the applicant had sustained injury, to which his employment was the main contributing factor. The respondent also did not dispute that the applicant had given notice of the injury and made a claim within the requisite timeframes.
The respondent advised that it may seek to rely on further factual evidence.
The matter was listed for conciliation/arbitration hearing on 17 July 2025, in person. Mr Morgan of counsel, instructed by Mr Kardum and Ms Haddad, appeared for the applicant, who was present. Ms Goodman of counsel, instructed by Ms Middleton, appeared for the respondent. Mr Morgen M of EML also attended.
The Application was amended by consent to claim weekly benefits from 27 March 2024.
The parties agreed on the applicant’s pre-injury average weekly earnings (PIAWE), and the relevant weekly amounts, should an award be made in the applicant’s favour.
The respondent did not dispute that the applicant has had at all relevant times, no capacity for work.
The sole issue in dispute therefore is whether the respondent has established a defence to the claim pursuant to s 11A of the 1987 Act.
I am grateful to the parties for their cooperation in narrowing the issues in dispute.
After the matter had concluded, and I had reserved my decision, the Personal Injury Commission (Commission) received on 30 July 2025, the following email from the respondent’s solicitors (omitting formal parts):
“We understand this matter proceeded to arbitration on 17 July 2025 and the Member has reserved her decision.
The respondent has received new evidence since the arbitration, which is related to the issue of whether the respondent had acted reasonably in its redundancy actions, and requests the matter be reopened to admit the evidence for the applicant and Member’s consideration. The respondent understands that if this request is granted, the applicant will be allowed the opportunity to respond to the new evidence.
Please let us know if the matter will be reopened.”
On 30 July 2025, the Commission received the following email from Mr Kardum (omitting formal parts):
“The Applicant vehemently opposes to [sic] such request.
The matter was listed and ran before Member Haddock, the inclusion of such further material to be considered by Member Haddock would prejudice the Applicant in every way.”
On 31 July 2025, I caused the following email to be sent to the parties:
“The member has considered the respondent’s request.
In circumstances where the matter has proceeded to conclusion on the evidence relied on by each party, the decision has been reserved, and the applicant opposes the respondent’s request, the matter will not be reopened.”
I will expand below on my reasons for refusing the respondent's request to reopen the proceedings.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents dated 27 March 2025, lodged by the applicant, and attached documents;
(d)    Application to Lodge Additional Documents dated 24 April 2025, lodged by the respondent, and attached documents, and
(e)    Application to Lodge Additional Documents dated 11 July 2025, lodged by the respondent, and attached documents.

Oral evidence

There was no application for oral evidence or to cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Pashtoonyar (Pash) Ahmadi

The Application includes a copy of a complaint by the applicant to the Australian Human Rights Commission (HRC), with numerous annexures. I was not taken to this document in any detail in submissions, and it is not my intention to refer to it in these reasons.
The applicant’s first statement is dated 13 May 2024. As injury and incapacity for work are not in dispute, it is unnecessary that I refer to all the applicant’s evidence.
He commenced employment with NEV on 12 October 2009.
He first saw his GP (general practitioner) in relation to the incidents of bullying at work in 2018. His GP referred him to a mental health psychologist and prescribed anti-anxiety and anti-depression tablets. He tried lots of different medications until he found one that worked.
He came to Australia in 1986. He sought treatment for war related depression as soon as he arrived. After a number of years, his depression had completely resolved. He ceased treatment and was symptom-free by 1996.
He now suffered from PTSD, anxiety, and depression as a result of the bullying, harassment and discrimination he was subject to at work. His prior mental health condition was therefore completely separate to this claim.
Selena (Afeaki), the person he was reporting to at work, had inflicted a lot of mental pain on him since 2018.
When he complained to Selena about being constantly nitpicked, she accused him of being defensive and weak. She spoke over the top of him and forced him to apologise.
Selena made fun of his name and said he was like the Taliban. She made him feel anxious and judged.
Ramadan was in March 2024. Selena accused him of making a little mistake. She said, “why did you put that in, idiot, if you cannot take the fasting, then go and take leave.” He could not take one month’s leave.
He never took a lunch break, or if he did, it was only five minutes, and he ate lunch at his desk.
He would pray for two minutes, and Selena would say she was not paying him to pray, although he prayed during his lunch break. He had to pray in the toilet because he was afraid of how Selena would treat him.
Since the bullying at work, he began stuttering. Selena would comment on this. This made him feel discriminated [against], humiliated, and judged.
Selena imitated the way he talked. If she was not making him feel nervous or bullying him, she was shouting and screaming at him. He had panic attacks on the way to work, felt like he could not breathe, and got very dizzy.
Since 2018, he was seeing a psychologist once a week and had 12 sessions per year. They then moved the sessions to every two weeks and then once a month. He still felt anxious, depressed and helpless on a daily basis. He still suffered panic attacks.
He was still seeing a psychologist and had started seeing a psychiatrist.
On 27 March 2024 [sic: 26 March 2024], at 4pm, Selena said she wanted to talk to him. He was not sure what was happening.
Selena said he was being made redundant. He had been working there for 14 years and 6 months and could not believe he was being made redundant.
He believed they treated him like a criminal by disconnecting him from the internet, and he did not have access to his work emails. Selena just said to “leave now”. He had belongings in the office from the past 14 years. She said to come the following day to collect them.
He went into work the following day and had no password. They logged into his computer and monitored everything he did. He could not collect any evidence from his computer to show [Selena] was bullying him every day.
The applicant’s second statement is dated 10 March 2025. Some of this evidence is a response to the evidence of Ms Kirilee Hall, Ms Erin Keen, and Ms Afeaki, which I discuss below, and there is a degree of repetition.
He was born in Afghanistan and came to Australia in August 1986 as a refugee.
He was dismissed from his position after 15 years, had a proven track record, and understood he was considered a valuable employee. His psychological injury intensified after being unfairly terminated.
He was alienated by his colleagues, as he was no longer included in the same meetings. A co-founder and shareholder would visit about once or twice per year from the United States of America (USA). During the later part of his tenure, he was excluded from meetings and dinners, whilst his co-workers were still invited. He was not provided with any formal reason why he could not attend.
He felt pressured and forced by the CEO to resign. She stated, “the easiest way to terminate staff is to pressure them into resignation”. He felt this was the company’s way to mitigate its financial obligations, as he was a high performer in a high position.
He felt that everything he had completed was being questioned, which made him feel isolated and placed into a corner at work. This impacted his mental health and wellbeing.
Kirilee Hall failed to note his role continuously evolved, where he gained greater responsibilities. He would oversee the entire finance department and ensure compliance with corporate policy.
It was untrue that Kirilee was unaware of any bullying and harassment, as he had documented his account. Selena Afeaki created a hostile work environment by her attitude towards him. When he raised these concerns, they were either dismissed or ignored.
He handled his position for 30 years with consistency, and his managerial responsibilities, without feeling undue pressure or frustration. Any frustration he may have experienced was not due to the tasks themselves but to the lack of support and increasing pressure from senior management, and in particular during the alleged process of restructuring and automation.
NEV had an accounts system that produced efficient and accurate results. The company decided to change these systems without reason, which created unnecessary pressure and complications.
He and his team consistently met deadlines, due to systems he had designed and implemented. Any frustration would arise when others failed to provide timely and accurate data necessary for preparing monthly financial statements, despite repeated requests.
His job (redundancy) was not merely a result of restructuring, but a target[ed] action with intent to remove him. His position was replaced shortly after his departure.
Kirilee described Selena as a kind person, whom she had never witnessed bullying him. He had this behaviour documented.
Kirilee stated he did not engage in prayer and his ability to pray was not limited. He was discouraged from open prayer. On several occasions he was told not to pray during working hours, despite having a private office. His prayers were short and quietly done.
He often took breaks of no more than five minutes to pray. He often skipped lunch as he was bullied and arrested [sic] for the smell of his food.
Kirilee mentioned that employees would often copy Selena into emails. Selena also monitored these emails. The IT department had unrestricted access to his private hard drive. The company had the right to monitor work-related communications, but the “total invasion” of his privacy, particularly during the process of his redundancy, was “undeniably excessive and unjustified.”
It was misleading to say he did not attend most senior management meetings. His participation was often sidelined and his contributions dismissed, creating an environment where he felt unwelcomed and undervalued.
He maintained that Selena had said, “This is Australia and not Afghanistan.” It was one of many times his ethnic background was disparaged.
There were multiple instances where he was deliberately excluded from critical discussions relating to his responsibilities and the department, which further marginalised him. The CEO often publicly humiliated him in weekly team meetings and harshly criticised him one-on-one.
Not only would Selena yell at him, but Kirilee would do so more often and more harshly. He put up with her harassment for the sake of the job.
Due to his senior position, he did not have time to undertake the medial [sic: menial] and monotonous tasks Kirilee asked him to do. The company had designated junior employees for these jobs.
The constant harassment and humiliation from Kirilee were stressful and belittling, as she did not have the same expertise, yet was instructing him on how to do his job.
Whilst it was company policy to provide a medical certificate for sick leave, he felt uncomfortable providing notes from his psychologist and psychiatrist. Out of fear of penalty, he changed his “sick leave” to “annual leave”. He was then questioned to justify his need for annual leave, although his employer sought this change.
At times he was required to look after his sick children. He would not have a medical certificate to prove his children were sick. Kirilee would request that he would take annual leave rather than carer’s leave.
Kirilee denied disciplining him or giving him clerical tasks. However, on multiple occasions she gave him tasks that were well below his expertise, in an attempt to undermine his importance and contribute to the negative environment.
His redundancy was handled without procedural fairness and was clearly aimed at removing him in a manner that was unprofessional and discriminatory.
His experiences, including his background, played a significant role in the discrimination he faced. ``````````````
It was completely false that there was a decline in his performance after the COVID-19 lockdowns. Despite the hostile work environment and immense stress, his performance remained consistently satisfactory.

The leave he took was necessary to treat his mental health concerns. This leave did not impact his productivity or work ethic.
Conflict arose with a consultant because of the consultant’s dismissive attitude and undermining of his role. He referred to his background to highlight the obstacles he had to overcome to reach his position, which the consultant disregarded.
Erin Keen stated that he spoke to Selena about family matters in or about December 2018. He did not recall doing so. If such matters were raised, they were likely brought as deflection from the harassment and discrimination he was experiencing.
It was untrue that the contractor was brought in to solve issues in the finance department, and there were significant improvements as a result. There were no issues with the finance department. His and his team’s performance was consistently documented as excellent by KPMG for over 10 years.
His role as finance manager remained essential, despite him being made redundant. The company did not follow the required consultation process, and he was not given procedural fairness, including advance notice, an opportunity to respond, and a support person. His role was handed over to a new financial controller without proper consultation. He had worked for the company for almost 15 years and contributed significantly, making this sudden termination shocking.
On 26 March [2024], Selena terminated his employment with only one hour’s notice. She made comments are [sic] the impact his employment had on the “face of Crunch” (the respondent’s trading name), which he took to mean redundancy was not the genuine reason for his termination.
NEV simply replaced his position with a financial controller, who in essence performed the same duties and held the same responsibilities. NEV breached the award by not allowing him to serve their notice period, causing difficulty in retrieving personal belongings and limiting his ability to seek other employment before being unemployed.
While it was true he occasionally attended to personal matters, he managed those instances, ensuring they did not impact his duties. He typically started work at 7am and finished around 6:30pm, taking minimal time off. Any time off he took was properly documented as annual leave.
The accusation that he allowed personal issues to impact his work appeared to be a tactical decision aimed at discrediting him and his work. Selena’s assertion seemed to be an attempt to undermine his professionalism and distract from the real issues of bullying and unfair treatment.
The accusation that his report was inaccurate was false, misleading, and insulting. Any issues that arose from the financial department was the fault of the management team and poor business decisions in the impact of COVID-19.
He had always welcomed constructive feedback. When he responded to feedback, it was intended to clarify misunderstandings and ensure any concerns were addressed accurately.
Any difficulties with contractors were due to misalignments in their approach and recommendations, not resistance on his part. He was open to change if it benefited the company. He felt it was his responsibility to advocate for correct practices.
He understood that contractors were given a negative perception of him. The CEO made unfavourable comments about him to the financial controllers, which led to lack of respect and professional courtesy. He felt he must defend his professional integrity and address errors in their judgment, as this was worsening his psychological issues.
He was met with friction from management, who would not accept his financial forecasts. When the company required the cash injection he had predicted, he faced further bullying for defending his position and presenting accurate results.
Selena’s discussion of how the contractor aided the company to recognise issues in financial accounting felt like an attempt to belittle him and devalue his additions to the company. Many of the issues identified by the contractor were concerns he had raised multiple times, but they were often overlooked or dismissed.
Selena had stated that on the day he was made redundant, he was maliciously forwarding confidential information. He was forwarding emails to protect his personal correspondence. Any emails forwarded to his personal account were intended solely to ensure a smooth transition and safeguard his own records. There was never any intention to misuse company information, and if some company information was transferred this was not malicious.
On the day of his termination, he was given only one hour to vacate the office, so mistakes may have been made in his panic and shock. Selena was using access to his emails, computer, and devices to invade his privacy and further intimidate him. Kirilee had cloned his PC (personal computer) and was monitoring everything he was doing, which made him feel villainised.
He had often felt marginalised at work due to his religious beliefs. Selena’s denial of these experiences was particularly troubling. Her derogatory remarks contributed to a hostile work environment.
While he was included in some meetings, his contributions were often dismissed. This treatment negatively impacted his self-esteem and hindered his ability to carry out his responsibilities effectively.
He was often excluded from key meetings involving funding bodies. Selena expressed that he was not welcome, as he was not a suitable “Face of Crunch”, due to his ethnic background.
Selena’s assertion that he provided falsified and late reports was without foundation and failed to reflect the reality of his contributions. Any delays were due to systemic issues beyond his control.
He took the initiative to overhaul the dysfunctional accounting systems at Crunch Fitness, directly contributing to the financial stability and growth of the company.
Selena made several comments that suggested his views were outdated and implied his age was negatively impacting his performance. He believed age-based discrimination played a significant role in his termination. Selena’s suggestions that he should consider retirement were inappropriate and deeply demeaning. These remarks were part of a consistent pattern that contributed to the hostile environment.
Selena’s statements regarding his observance of Ramadan were incorrect and dismissive. He had been fasting during Ramadan for most of his life, without any impact on his performance. This invasive scrutiny of his religious practice contributed to a hostile environment.
The hostile environment, fuelled by bullying and racial discrimination, contributed to his struggles, and was not merely a deflection from any performance issues.

Applicant’s email of 9 June 2023, to Ms Afeaki and others

I do not intend to reproduce the email in its entirety. I have paraphrased some of the contents.
The applicant attached two files, including budget projection and explanation of May and June revenue reduction. He provided some explanation.
“If parties did their homework”, the question of EBTIDA (earnings before taxes, interest, depreciation and amortisation) reduction in June should have been raised before the meeting. They then could have spent time coming up with strategies to deal with cash flow, and not on issues that should have been dealt with before the meeting.
His explanation proved that his projection on 6 May 2023 was correct.
He was not defending himself, as he was attacked from every corner, despite his repeated request to give him one hour to explain and clarify the reduction in revenue and his projection. He felt so stressed that his mind went blank.
The stress of blaming him for something that was not his fault had caused [such] enormous and unnecessary stress that he needed to consider his future wellbeing and the best option to move forward, as he did not want his family impacted by issues that were not their fault.
He started with Crunch on 10 October 2009. His contribution to the success of the company was clear and documented. He was able to defend himself should any action be taken against him for defending what was right.
He was writing the email because he had never faced such issues in his 28 years work experience, 95% of which was spent at senior level.

Email to applicant and others from Jonathan Rudman – director of audit specialists SDJA – of 9 June 2023

Once again, I have not reproduced the email in its entirety and have paraphrased some of its contents.
He thanked Pash.
He apologised if they had upset the applicant. This was not their intention, and as [the applicant] may appreciate, a level of confidence in the numbers was required to make informed business decisions. The significant changes over relatively short periods had led to a loss of confidence.
He asked what were the actual NMS (new membership sales) for May.

Applicant’s email of 11 June 2023, to Ms Afeaki and others

Once again, I do not intend to reproduce the email in its entirety. I have paraphrased some of the contents.
The applicant strongly disagreed that he had been made upset by what happened last Friday (that is on 9 June 2023). Feeling upset was a sign of personal weakness, and he was not a weak person.
Last Friday, he felt humiliated, was made to feel less important and undervalued. Being dismissed, embarrassed in front of others made him question his version of reality, and shifted the blame to him.
He pleaded for a chance to explain a drop in revenue, but this never happened, and his mind went blank.
He agreed that a level of confidence in the numbers was required to make informed business decisions, and the significant changes over relatively short periods had led to a loss of confidence. As CFO, it would have taken only five minutes to read the model and ask him why there was a big shift in revenue. Had this happened, the incident on Friday would have been avoided.
One of the reasons for such behaviour was to make the victim resign, but that would be a slap at [sic] his face after nearly 14 years of good service. He loved working with Crunch despite what was happening and would do anything in his ability to see it pass this difficult time.
He asked only to be treated with respect as a professional and human being. If he was incompetent, they would not have an unqualified audit report and have passed due diligence more than 10 times.
“To answer your question”, the May new membership sales (figure redacted) were provided.
The CEO of the fitness company was the only person who impacted the cash flow. Finance professionals’ decision to strategise cash flow had negative impact and would make everything worse.
He had no problem working with anyone to achieve Crunch’s common objective at any level of finance capacity, even as assistant accountant. He was mature enough with high self-respect [not] to worry about titles.
The last paragraph has been reproduced verbatim, including spelling, bolding, and capitalisation:
“As I am going on holiday for 40 days, I only ask PLEASE if any action will be taken against me to simply express my view points and I am not accusing anyone of anything, PLEASE WAITE UNTIL I HAVE RETURNED BACK FROM HOLIDAY AS I SPENT LOTS OF MONEY AND I WANT MY LITTLE DAUGHTERS ENJOY THEIR HOLIDAY OF LIFE TIME. THIS IS NOT THEIR FAULT AS THEIR FATHER IS INCOMPETENCE. I WOULD LIKE TO FACE MUSIC IN EARLY AGUST PLEAE.”

Evidence of Huiling (Chloe) Chen – former financial accountant

Ms Chen’s “personal statement” is dated 7 April 2024.
She was employed by the respondent from 27 August 2018 to 28 July 2023.
Starting from June 2023, she noticed a more stressful atmosphere in the office. The senior management team started holding more frequent meetings and monitoring their work.
Pashtoonyar began having more meetings with her to discuss the financial results. He informed her that Selena was exerting pressure on the finance team regarding cash flow results, blaming it for not presenting satisfactory statements. She and the applicant worked extensively on updating the cash flow model.
On 9 June 2023, the Pashtoonyar discussed with her the possibility of unfavourable cash flow results, as Selena was blaming the finance team for not performing adequately. She expressed her disappointment at the blame.
That same afternoon, leaving the workplace, she heard a loud argument between Selena and Pashtoonyar in Pashtoonyar’s office. She could not hear the content. The tone and volume indicated a serious and tense exchange.
On 11 June 2023, Pashtoonyar contacted her. He revealed the finance team had been under attack by Selena. She had challenged him on his budgeting and forecasting models, criticising his performance. Selena and an external financial consultant made fun of him and questioned his competence, suggesting he should be replaced. He disclosed that Selena had requested his resignation, despite his planned holiday in two weeks.
Pashtoonyar confirmed that he felt bullied but had decided not to resign but to fight back by delivering better results. He asked for her assistance. She agreed to help him with a review of the budget and model when it was available.
Following this conversation, Pashtoonyar forwarded her and Selina Nair, another accountant in the finance team, an email he had sent to Selena.
On 13 June 2023, she confirmed with Pashtoonyar that she had reviewed two worksheets and found no issues. She subsequently attended a medical appointment when she mentioned to her GP her anxiety and difficulty concentrating, leading to a referral to a psychologist clinic.
In the afternoon of 13 June 2023, she and Pashtoonyar reviewed the finance models and concluded the cash flow and forecasting model were accurate and professional. Pashtoonyar expressed his anger at the bullying and encouraged her to stay strong and continue her work.
From 13 June 2023 to 15 June 2023, the finance team performed its duties and delivered its proper financial results. She still sensed a strained atmosphere between Selena and Pashtoonyar.
By 15 June 2023 her panic attacks had intensified. She resigned that afternoon.
While she did not personally experience bullying, the behaviours Pashtoonyar described were the main reasons for her resignation. She observed during her five years at Crunch that Pashtoonyar did not receive the positive feedback he expected from the management team.

Evidence of Enkhsaikhan Siasoco – former assistant accountant

Mr Siasoco’s letter is dated 8 April 2024.
He worked at NEV from June 2022 to December 2023.
There were “a couple of incidents in relation to toxic work environments such as bullying, passive aggressiveness, yelling” towards employees, including the applicant.
Selena Afeaki yelled at the applicant and bullied him with other employees. She passively aggressive [sic] towards accountants, including him.
He believed the stress caused to the applicant caused psychological damage.

Evidence of Erin Keen – human resources coordinator

Ms Keen’s statement is dated 16 May 2024.
She believed Pash spoke to Selena in December 2018, in relation to family/relationship matters at home. They were shut down for a number of weeks over Christmas.
The date of the alleged incident was a Wednesday to Friday, when they had gone on holidays.
As far as she was aware, the organisation was looking at costs and the company’s financial situation. Due to that, Pash’s role was made redundant.
Nothing about Pash’s performance had ever come to her attention. She worked from Victoria and Pash worked in New South Wales.
Pash and Selena had not disclosed any issues with each other.
Kirilee looked after Selena’s office when she was on leave. They had a policy of requiring a medical certificate when staff took two consecutive sick days, or a day off before or after a weekend. She believed Kirilee asked Pash for a certificate and he believed she was discriminating against him.
It was agreed that a contractor would come in and “clean up the finances”. They had since had a significant improvement.
She was aware that Pash attended a redundancy meeting with Selina on 26 March 2024, and he was made redundant on 27 March 2023 [sic].

Evidence of Kirilee Hall – chief of business systems

Ms Hall’s statement is dated 27 May 2024.
Nothing was ever raised by Pash in relation to her or Selena bullying, harassing, or victimising him. She had never witnessed Selena bullying Pash. Pash would often handle things with frustration.
She understood there was a restructure of the accounting department, and it was automated. As a result, Pash and others were made redundant.
She would describe Selena as very kind, and she treated everyone the same.
The office was very multicultural, and she was one of the few Caucasians working there.
She did not know anything about Selena not allowing Pash to pray. She had never seen Pash pray, and he had his own office with capacity to pray whenever he wanted. To her knowledge, he was not a person who prayed or took part in religious activities.
She “guess[ed]”, depending on the situation, they would copy Selena into emails. Any emails with shareholders, internationals, legal or banking related, would always be copied to Selena. Selena was the owner.
Pash would not turn up to most senior management meetings. His contribution was to give a financial status. It was not necessarily a place to raise ideas. Nothing was shut down.
Selena would definitely not say, “Pash, this is Australia and not Afghanistan.” This is not a comment she would make.
She was not aware of Pash being excluded from important finance meetings. He managed their finance and would often be on Board calls with shareholders, which she assumed were finance related. Selena would have separate calls/meetings with shareholders, but she would not say Pash was excluded from anything.
She had never heard Selena yell at Pash or anyone in the office.
Their business policy is to provide a medical certificate for half a day off. She was following the policy. She checked with the HR (human resources) consultant and Fair Work prior.
Pash was not happy and told her the policy was a waste of time, if people took a half day off. Pash changed his leave to annual leave.
She would not know how to tell Pash to do his job. She would go into his office, but definitely did not discipline him. If she told him to do anything, it was account clerk duties, for him to pass onto his team.
No one in the company had a private drive or should be using company emails for personal use. All drives and emails were accessible by IT.
Upon his redundancy, they allowed Pash to come back in because he said he had personal emails in the company email address, which was not recommended. They told him they would monitor what was sent. They found him sending company documents to himself. Then they locked down his account.
Selena did not have access to his account, and the team that did was not reading his personal emails, but his account had been kept active so nothing important was missed.
On the day Pash was made redundant, it was afternoon, and only she and a colleague were there. It was home time. Selena was aware of the process, and the applicant had the option to come back. They disabled his access to emails by resetting his passwords. He had access to his computer the following day, under supervision.
Knowing that the applicant had raised this claim was not a shock, but to target people and make false allegations was the shocking part.
For a long time, Pash was just processing the numbers, doing his job, and ticking the boxes. After returning from COVID-19 lockdowns, his focus had changed. He took annual leave and had multiple half-days that impacted his work. Some of his reporting became quite inaccurate, which was passed onto his team.
Pash “definitely felt threatened” by the consultant. There was conflict over a Teams call that she only heard from a distance. Pash said this person was insinuating he could not do his job. The contractor decided he would no longer work with them.
At no stage did she or Selena bully, harass or victimise Pash.

Evidence of Selena Afeaki – director/CEO

Ms Afeaki’s statement is dated 28 May 2024.
Pash was always saying that something was going on with his life, his home, his extended family, his house, his investment property tenants. He constantly had personal issues. He frequently took time off to help family members, sometimes almost weekly, and mostly last minute.
The decision to make Pash redundant was recent, but the process started over a year ago. The company went from being in a cash strong position to not being able to meet its cash-flow requirements after COVID-19.
This changed the focus of the business. The need from the accounts team went from simply reporting to a more strategic level of support. As shareholders were being asked for support and funding, there was more focus on strategic financial reporting. The information being provided was limited, lacked accuracy, was backward focused, and shareholders had no confidence in the reporting.
They hired an external company to provide CFO services. It was really hard to get them to work together. It was not working, as the foundation of the accounting systems still lacked accuracy.
Initially, when errors were identified, Pash would take offence and send emails to all parties accusing them of unfair comments. They would highlight that there was no confidence in the numbers, and they were seeking further explanation. Emails would continue, accusing them of criticising him personally. This was not the case. There were so many errors and so many numbers that were unclear to her and the CFO that this made it extremely difficult to work with Pash. She and the CFO agreed it was not working out and they decided to end the support.
Before leaving, the CFO suggested they automate and update much of the current accounting systems.
They hired a firm to review their accounting systems and create an automation plan. This person could not work directly with Pash because it was not Pash’s strength. They had one of Pash’s team and their business systems person work with him.
Once the project was ready for execution, it was clear the proposed systems would not be enough to fix the problems. They needed a bigger overhaul of the accounting function.
The final step in the redundancy process was when they had to go to the shareholders a third time for more funding, again showing no consistency in their reporting.
A shareholder was visiting from the USA. He told Pash he was just reporting numbers that did not make sense and Pash was not helping the business at all. From this meeting, she was told the shareholders would not invest further until they provided a financial strategic plan to support the funds. She knew she had to seek a more hands on strategic financial person.
She appointed someone on a six-month contract to work alongside Pash and his team to build a strategic financial plan.
They then realised how bad their accounting systems were. She realised the business needed a full accounting function upgrade and Pash would not fit into this function. She had to rebuild it from scratch, by out-sourcing to a company to get access to CFO level services.
It was a hard decision. She knew Pash would be upset. It would cost six months’ salary when cash was tight, but she took comfort that the payout would take care of Pash, and he would be OK. She had just made someone else in the accounts team redundant.
After she made Pash redundant, she gave him a whole day to clear out his personal things and information stored on his computer. She told him they would monitor what he forwarded and reminded him not to send work related emails. Pash still forwarded numerous emails of confidential information to himself. When she “pulled him up”, he said he made a mistake. These were no mistake.
She did not know why Pash submitted a claim, as he did not report to HR that she was bullying, harassing, or victimising him.
It was totally untrue that she did not allow Pash to pray. She had emails where she said it was OK. She prayed too. He had his own office where he could pray.
Pash did email her saying please stop bullying and nitpicking. This always came after she questioned him or mistakes he made, or even when she just questioned unexplained numbers. It became his standard response.
She had emails where she responded. She explained she was not picking on Pash, nitpicking or bullying him. He would sometimes use “the racial card”, say [she was] bullying, or that he had mental health issues from escaping Afghanistan.
She would always address these issues when Pash brought them up. She would email first and sit and speak with him and make sure he was OK. She knew why he felt offended. She just wanted him to focus on the work.
She did not know what Pash meant about her asking to be copied into emails. If he was sending emails to the shareholders or landlords, she would ask him to send them to her first, so she could correct the grammar. He volunteered to do so.
She had to address ideas Pash would raise in senior management meetings, be honest, and close them down, as it was time wasting. He would many times come up with ideas that would not make sense. She would call him out, but not in a disrespectful way. In many meetings he would fall asleep.
She would never say “this is Australia and not Afghanistan”. It had no relevance to anything. Pash had been in Australia longer than her.
Pash was always included in meetings where he was needed for accounting matters. She did not yell at him for speaking up.
Pash’s leave “was a bit of a mess”. He took all kinds of leave, sometimes without submitting leave requests. She believed that when she was on holiday, he claimed sick leave and the team said to provide a medical certificate. “After a contesting”, Pash did not provide a medical certificate and put in for annual leave.
It was true she was constantly asking for updates because Pash’s reports were not on time. As for his ability, she questioned the integrity of information. Questioning was never personal, always information based.
After reviewing their systems over the last few months, she understood why she could not get information. The systems were outdated, non-compliant and just wrong. It was clear Pash was out of his depth. Her questioning was respectful.
In relation to Pash’s claim that she personally attacked him on 9 June 2023 in relation to cash flows, she would not personally attack him. The cash flow was not his responsibility, but the reporting was.
The financial reporting on that day showed major inconsistencies and entries they could not understand. She and the CFO questioned Pash. His answers did not explain the numbers. They struggled to understand.
Everyone was respectful in the meeting. There were no personal attacks. The meeting ended with clear next steps for clarification.
Pash sent an email better clarifying the cash flows, but also made the point that he felt embarrassed, picked on, and blamed. She and the CFO responded in a very empathetic way, advising they were simply trying to understand the numbers. It was Pash who made the personal attacks.
She met with Pash and made sure he understood their intentions and was OK with moving forward. They agreed they were stronger together, and he sent emails confirming they must work together to rebuild the business. He then went on a six week holiday to Europe with his family.
It was not true that she said to Pash he was getting old, and his point of view was not applicable in this century. The only conversation she could think of was when she asked how long he wanted to stay in the role, because he always had so many things going on outside of work. Pash asked if she wanted him to retire, and she said no. He said he wanted to see the company through to exit, and she said, “let’s do it.” That was well over a year ago.
She did not tell Pash to take time off during Ramadan. As far as she knew, he did not follow Ramadan. She saw him eating during this time. She did not think his mistakes were from Ramadan.
In relation to Pash’s claims that she made comments about his praying, and he was forced to pray in the toilet, “Oh my goodness, that is such a lie.” She never said anything like this! (Exclamation mark in original). He never asked her if it would be OK to pray, and he had the biggest and most private room. He had freedom to pray any time and anywhere.
She knew there were real serious issues in the applicant’s personal life, most likely causing his claimed mental injury. Since his departure, she had learned more of what was happening in his personal life and found it disturbing. She had to advise him she could not act as a referee for him. Knowing what she now knew, she would not recommend him.

Email to applicant from Selena Afeaki of 26 March 2024

The mail was sent at 6:06pm. Its subject line was “Notice of Redundancy”.
Once again, I have not reproduced the email in its entirety and have paraphrased its contents.
Ms Afeaki thanked the applicant for his time that day, and the chance to explain and discuss the changes that affected his role.
To secure shareholder funds, she was required to get approval of a strategy to improve both financial performance and financial management and reporting. She had to present a REFOCUSED MAP and strategy to significantly improve the business and GROW it into a future focused growing business. (Capitalisation in original).
The finance function and team had been identified as one that required a major adjustment and therefore change in structure. The aim was to utilise technology and innovation for improved efficiency and effectiveness. She would be adding financial strategic partners such as a chief financial strategy officer and business innovation strategist as external consultants.
Unfortunately, as [she had] explained, this meant the applicant’s role was considered redundant. She was really sorry, but she did not see any other opportunity or role for the applicant in the company at that time.
She understood this was upsetting, and she was there to support the applicant. They would meet again tomorrow. If he had anything further to add, they could discuss it then.

Email to applicant from Selena Afeaki of 28 March 2024

Once again, I have not reproduced the email in its entirety, and I have paraphrased its contents.
The email attached, “as promised” a copy of the redundancy notice letter the applicant had refused to take at their meeting on 26 March.
The applicant had been provided with access to the email system and his files to remove his personal information and change his personal accounts/logins to a new personal email/contact. She had reminded the applicant that it was inappropriate and not accepted that he used his work email/computer for such extensive personal use.
She had yesterday discovered that the applicant had forwarded multiple company related/confidential emails to his personal email address, which could be grounds for termination. She reminded the applicant that, if there were other such files/emails he had stored, to delete them immediately.
They were unable to locate the safety box from the applicant’s room, and she asked if he knew where it was. For the next 30 days, they would forward any personal emails to give him time to reset his email address.
The applicant’s final payout would be processed on 3 April. She asked the applicant to let them know if he needed anything else.
She wished the applicant “all the very best for the next part of your journey in life!”
The “notification of termination due to redundancy” was attached and dated 26 March 2024.
The applicant’s position was expected to become redundant on 27 March 2024.
The letter attached a schedule of the applicant’s estimated entitlements.
The applicant was asked to arrange for all the respondent’s property to be returned immediately.
The applicant was thanked for his service and wished the best for the future.
The applicant’s entitlement included 12 weeks’ wages.

Evidence of Karen Hillen – owner of My HR Partner

Ms Hillen’s statement is dated 26 June 2025.
She contracted with the respondent.
She had spoken to the applicant about many issues, including when he asked for advice for his brothers, who were having problems in an external company.
She did not recall a conversation with the applicant about him being bullied or discriminated against. If he had, she would have had to raise it with the CEO and others.
She found that the employer was caring towards the applicant and overlooked some performance issues due to its positive feelings towards him.
She believed they kept the applicant on longer than perhaps they should have.
She was not aware of any concerns raised by the applicant regarding bullying, harassment, or discrimination. She supported the HR manager, who would bring any serious issues to her.
She believed the respondent had an excellent culture and valued staff who embodied its own culture.
She had found that staff who did not fit into the [respondent’s] values tended to be moved on during the probation period.
She had multiple conversations with Selena Afeaki about the need to restructure. This became more apparent after COVID-19.
It was decided they needed to bring in someone with higher financial and management skills. The respondent needed more of a CFO than a financial manager.
The applicant was not up to CFO level. She was “pretty surprised” by the gaps in his knowledge.
She was not part of the meetings with the applicant regarding his redundancy. However, she gave Ms Afeaki all the tools and information she required to run this meeting.
As far as she was aware, the applicant was allowed to respond to the redundancy process. He would have been given notice of his meeting and would have been allowed to bring a support person. This was all part of the tools she provided to Ms Afeaki.
The respondent had established processes and policies related to redundancy, as she had produced them.

Medical evidence

In view of the respondent’s concession as to injury and incapacity, it is unnecessary that I refer to all of the medical evidence.

Argyle Street Medical Centre

The clinical records of the practice commence on 18 July 2002.
There are references to the applicant requiring prescriptions for anxiety and panic attacks and having been prescribed Ativan and Lexapro.
On 3 January 2015, Dr Kim Tsia recorded that the applicant had a history of anxiety and was using Ativan long term. He used a quarter of a tablet or otherwise could not function at work.
On 8 November 2015, Dr John Yuen recorded that the applicant was on Ativan for anxiety when he went to work.
On 17 August 2018, Dr Kamal Siddiqui made a similar notation.
On 2 August 2021, Dr Kaye Xu recorded that the applicant suffered from depression/anxiety and PTSD. He took Ativan when he went to work. His anxiety level was well-controlled with Ativan.
On 16 December 2022, Dr Rong (Karen) Wang recorded that the applicant had a background of “refugee, anxiety”. He had been seen by psychiatrist Dr Patrick Toohey. He was on Zoloft and Ativan.
On 8 February 2023, Dr Xu recorded that the applicant’s job was very demanding. He was an Afghan refugee. He suffered from PTSD and anxiety and needed Ativan to control his anxiety.
On 24 January 2024, Dr Siraj Sira recorded that the applicant’s mood was stable, and sleep OK. He was anxious from time to time. He was seeing a psychiatrist and psychologist. He had a stressful job.
On 7 May 2024, Dr Xu recorded that the applicant’s anxiety was reasonably well controlled with Ativan.

UR Family Practice – general practitioners

The clinical records of the practice commence on 16 February 2018.
The first entry refers to “anxiety and depression for years” and ongoing thoughts of not worthing [sic] living”, but no plan to act on this.
There are numerous references to psychological issues. There are referrals for Mental Health Care Plans (MHCP), none of which refers to workplace issues.
The applicant’s antidepressant medication was adjusted and altered.
The clinical records noted on 24 August 2020 that there were “concerns with marriage”. The applicant had seen a psychiatrist and a marriage counsellor.
On 15 March 2021, Dr Aashita Hegde recorded that the applicant reported worsening nightmares/ PTSD symptoms due to current stressors. He was harassed by a neighbour and was filing a discrimination report. He was not invited to a town council and not elected as a member due to his race/background/refugee status.
The applicant requested an increased dose of medication. Dr Hegde recommended he also see a psychiatrist, but he was “not keen.” He assured the doctor he would see a psychologist.
On 18 March 2021, Dr Hegde recorded that the applicant was taking six or seven neighbours to NCAT (New South Wales Civil and Administrative Tribunal). He was “very stressed about it.”
The applicant’s anxiety was worsening, and nightmares were waking him. The reason for the visit was recorded as “PTSD”.
Dr Hegde continued to record psychological symptoms, including nightmares and flashbacks. On 22 March 2021, the applicant requested a letter so his legal disputes could be put on hold whilst his PTSD symptoms were exacerbated by current stressors, and this was provided.
On 1 April 2021, Dr Hegde recorded that an updated MHCP was done, as the last plan did not discuss nightmares or symptoms of PTSD. The applicant still had anxiety “due to current upcoming legal battle.” He reported always feeling depressed.
On 28 May 2021, Dr Hegde recorded that the applicant felt improved but reported significant anxiety. The tribunal issue had ended. He was having some issues with his wife, finding her very argumentative.
On 11 November 2021, Dr Xiaotao (Sandy) Yang recorded a discussion about whether to stop the applicant’s medication for anxiety. The applicant was advised to continue his current medication, and if he was stable for the next six months, to consider weaning off it.
On 14 January 2022, Dr Yang recorded that the applicant was still feeling anxious and depressed. He wanted to change his medication.
On 9 February 2022, Dr Pasquale Rositano recorded that there was no financial/increased work stress. The applicant was feeling good in the context of the pandemic.
The applicant continued to consult the practice for medication for his anxiety and depression. On 15 March 2022, he was referred to Dr Toohey.
On 27 May 2022, Dr Yang recorded a call from the psychiatrist – “advise that patient is paranoid.” The applicant was reluctant to accept that.
On 31 May 2022, Dr Peter Thai recorded that the applicant felt excessively sleepy after his first dose of Seroquel. He was unable to work properly, felt drowsy while driving, and pulled over on the way to work. He felt more paranoid, had a speech problem, and felt withdrawn.
The clinical notes then recorded improvement in the applicant’s symptoms.
On 9 August 2022, Dr Thai recorded that the applicant had occasional nightmares but was improved. “No issues with work and usual activities. Good mood”. The applicant was becoming more assertive and improving interactions with colleagues.
On 19 June 2023, Dr Emmanuel Carpio recorded “new stressors. Issues with friend getting a divorce. Workplace bullying.” The applicant wanted to see a psychologist. This had been recommended in the past but always declined.
On 26 June 2023, Dr Carpio recorded that the applicant was going on holiday for 45 days.
On 4 April 2024, Dr Yang recorded that the applicant was made redundant on 27 March 2024. He was “stuttering usually” and stated he was bullied by his colleagues, “Now flashback”. The applicant wanted to lodge WorkCover. He wanted to claim it as a WorkCover case, “ongoing bullying and harassment from employment.” They discussed the possibility that the claim could be rejected.
On 20 June 2024, Dr Yang recorded that the applicant regretted not reporting WorkCover early on “due to thinking of mortgage.”
Dr Yang reported to the applicant’s solicitors on 30 October 2024.
It appears that this report may have been prepared in response to a letter dated 4 September 2024 from the applicant to Dr Yang.

Applicant’s letter to Dr Yang – 4 September 2024

I have not reproduced the letter in its entirety and have paraphrased its contents.
He informed Dr Yang of an “unfortunate development” in that his claim had been rejected.
He believed the decision was incorrect and wished to provide Dr Yang “with some context and reasons” for his belief.
“As you are aware”, he had been experiencing severe mental and physical health issues directly linked to the prolonged stress and bullying at his workplace.
The reasons provided for the rejection seemed to overlook the severity of his symptoms and “the clear connection” between his workplace and his current health.
“As you know”, his injury developed gradually over the past five years. The applicant set out “key factors”, including
·        bullying and harassment
·        unfair dismissal and breach of privacy
·        deterioration of mental health
·        impact on daily life
There was a “noticeable worsening” in early 2024. On 26 March, one day before his termination, his mental health reached a critical point, prompting him to see his GP.
Given the culmination of these factors, the date of injury could be identified as 26 March 2024, when he consulted your [sic] GP due to his inability to cope with the ongoing bullying at work.
He had consulted a lawyer, who had advised he had a “100% chance of success in winning the case.”
He asked for Dr Yang’s continued support, “particularly in providing any additional documentation or clarification that may be required to strengthen my appeal.”
Dr Yang then reported on 30 October 2024.
Dr Yang recorded that the applicant had been under his care since February 2018, receiving regular consultations to address anxiety, depression, and trauma, primarily triggered by workplace incidents.
The applicant recently began consulting clinical psychologist Ms Ayesha Farooq and psychiatrist Dr Jaspreet Singh.
The applicant last visited the practice on 26 March 2024, with symptoms of extremely severe depression, anxiety and stress linked to workplace stressors.
The applicant had described escalating incidents of harassment, bullying, and discriminatory comments, specifically targeting his ethnicity, age, and disability, significantly impacting his mental health.
The applicant had displayed symptoms of severe anxiety, MDD, and exacerbated PTSD.
Dr Yang had diagnosed the applicant with adjustment disorder with mixed anxiety and depression, and exacerbation of PTSD related to ongoing workplace harassment and bullying.
Dr Yang reported to the applicant’s solicitors on 12 November 2024.
The applicant had been under the care of Dr Yang and the practice since February 2018, with regular consultations to address symptoms related to anxiety, depression and trauma.
The applicant’s MHCP had been renewed on 26 March 2024, and he was referred to accredited mental health practitioner/social worker Julee Payne and Dr Singh.
The applicant had reported workplace bullying at the consultation on 19 June 2023. He stated he was made redundant on 7 March 2024 [sic] and at the consultation on 4 April 2024 stated that he got bullied by his colleagues.
The applicant had reported symptoms indicative of severe anxiety, MDD, and exacerbated PTSD.
Dr Yang had diagnosed the applicant with adjustment disorder with mixed anxiety and depression, with an exacerbation of PTSD. The applicant had aggravated a pre-existing condition, to which employment was the main contributing factor.

Ms Barbara Preston – clinical psychologist

Ms Preston reported to Dr Hegde on 3 May 2021.
Ms Preston recorded a recent return of the applicant’s PTSD symptoms, while he undertook reviews by tribunals of decisions of the owners’ corporation of his residence. The applicant was experiencing anxiety, nightmares, and difficulty with concentration. He had been unsuccessfully seeking redress through the Anti-Discrimination Tribunal.
Ms Preston reported on 2 August 2021 that the applicant had attended for six sessions and had not returned.
The applicant’s treatment was aimed at a reduced stress approach to his status regarding the owners’ corporation decisions. He had also sought psychological input regarding his private life.

Dr Patrick Toohey – psychiatrist

Dr Toohey reported to Drs Thai and Yang on 31 May 2022.
The applicant had described on-going, fluctuating anxiety and agitation triggered by a sense of danger from others, including his wife.
There had been chronic conflict with a housing association. The applicant attributed this to his nationality causing discrimination against him. “They insulted me because I look different. They attacked me verbally.”
Dr Toohey recorded that the applicant was traumatised in Afghanistan. When he came to Australia, he saw a psychiatrist for being “depressed, anxious, and afraid of everyone.”
The applicant’s father and brother both suffered from the same kind of suspiciousness and agitation. Dr Toohey opined that trauma in Afghanistan and migration could contribute to these symptoms.

Dr Jaspreet Singh – consultant psychiatrist

Dr Singh reported to Dr Yang on 5 July 2024.
Dr Singh recorded a history that the applicant lodged his claim as he was constantly being bullied at his job by the CEO since early 2018. The applicant mentioned being harassed, belittled, and racially discriminated against, of which he gave many examples.
This had led to the applicant restarting treatment for his earlier diagnosed PTSD for which he had received treatment for many years after arriving in Australia in 1986. He had seen a number of psychologists and counsellors, in addition to [taking] medication, which he told Dr Singh was stopped in 2000 as he felt much better.
The applicant started seeing psychologists again privately in around 2018. He had also been referred to a psychiatrist but claimed he could not see them because of financial hardship.
The applicant’s situation was quite complex. He had applied to reopen his claim for unfair dismissal and had a lawyer “looking into his claim for racial discrimination.” He had an independent psychiatric examination in about two weeks.
The applicant had become extremely distressed because of the combination of these factors. He mentioned constant flashbacks of the conversation with the CEO and abusive remarks over the last many years.
The applicant had handed Dr Singh a statement detailing all the problems he had encountered.
Dr Singh recorded that the applicant had a past diagnosis of PTSD. He appeared quite distressed and preoccupied with the work related events and in particular daily flashbacks of the CEO.
Dr Singh again reported to Dr Yang on 7 August 2024.
The applicant had complained of ongoing nightmares involving his employer and past experiences in Afghanistan. He dreamed about the CEO/employer bullying him. He remained anxious and apprehensive.
The applicant felt stressed about supporting his family and relatives in Afghanistan, and ashamed and reluctant about being on compensation.

Dr Juan Carlos D’Abrera – psychiatrist

Dr D’Abrera was qualified by the respondent and reported first on 20 July 2024.
Dr D'Abrera recorded a history that the applicant was made redundant on 27 March 2024 after significant interpersonal conflict with Selena Afeaki and other senior staff. He intended to lodge a complaint with the HRC.
The applicant said that, after the pandemic, there was a downturn in profitability and he and his team faced increasing pressure from the CEO. He felt that around 2018 his relationship with Selena soured. He cited numerous episodes of alleged bullying, harassment and discrimination.
The “straw that broke the camel’s back” was Selena’s reported statement that the applicant was not the face of Crunch. The applicant felt she was ashamed of him, and he was excluded from meetings with third parties because of his identity.
The applicant said the ostensible reason for his termination was restructuring, and all four of his direct reports were also fired. This was because they were handpicked by him, and the company wanted them gone so they “would not talk.”
Dr D’Abrera noted that the accounts of Selena Afeaki, her PA (personal assistant) and other members of management differed from those provided by the applicant.
The applicant complained of being anxious, depressed, irritable with his family, and having flashbacks of Selena’s face. He experienced extreme guilt that he did not “defend” himself when he was “humiliated” by the CEO.
Dr D’Abrera recorded a history that the applicant was suffering from depression and PTSD after arriving in Australia in 1986. He saw a psychiatrist and his symptoms remitted about a decade later. He had been on and off Lorazepam since 2018 and he had recently increased the dose.
On cognitive testing, Dr D’Abrera recorded that the applicant had significant deficits that were grossly out of proportion for a man with his educational and employment background. The testing was so substantially impaired that the only reasonable conclusion was that the applicant was exaggerating his symptoms. If the cognitive questions reflected his true capacities, he should not be operating a vehicle or leaving the house without supervision.
D’Abrera reported that it was not for him to say whose version of events was correct, but it seemed highly implausible that Selena and other employees repeatedly engaged in the crude discriminatory behaviours the applicant alleged.
It was difficult for Dr D’Abrera to draw a firm diagnostic conclusion when he could not be sure of the accuracy and reliability of the history. He could not definitively exclude malingering as an explanation. There was insufficient information from treaters regarding the applicant’s symptomatology.
Dr D’Abrera reported that there seemed to have been interpersonal problems with the applicant’s employer, specifically, but not confined to, the CEO. There was a strong suggestion of personality vulnerabilities flavouring the applicant’s interactions with others, and a tendency to interpret constructive criticism as a hostile attack, based on his race, religion, and disability, rather than his performance.
Dr D’Abrera opined that the applicant’s dismissal had contributed in large part to his distress, but he was not confident about the diagnosis, given the applicant’s apparent unreliable history.
The applicant was not fit for his pre-injury duties. He was unable to perform basic mental arithmetic and needed a calculator to subtract 7 from 93. He was also not psychologically fit for any other work.
Dr D’Abrera provided a supplementary report dated 12 August 2024.
Dr D’Abrera had reviewed the clinical material.
Dr D’Abrera opined that the applicant had an adjustment disorder with mixed anxiety and depression, and PTSD (in remission). The applicant also possibly had prescription medication dependence, personality disorder and cognitive impairment.
The applicant had aggravated a pre-existing condition during the course of his employment. His employment was the main contributing factor to the aggravation.
Dr D’Abrera opined that the predominant cause of the applicant’s injury was his dismissal, as his psychological condition deteriorated sharply in that context.
Dr Ashwinder Anand – consultant psychiatrist, neuropsychiatrist
Dr Anand was qualified by the applicant and reported on 28 October 2024.
Dr Anand recorded a history that when the applicant came to Australia in 1986, he was referred to psychiatrist Dr Richard Bernard, because of his exposure to a lot of torture in Afghanistan. Dr Bernard diagnosed him with PTSD and medicated him on antidepressants.
The applicant was treated by various psychologists for over 16 years and medicated with antidepressant. Since 2000, he had not been on any antidepressant and his mental health had improved tremendously.
Dr Anand recorded that COVID-19 impacted quite significantly on the respondent’s finances and the CEO panicked. She started to abuse senior management. Because the applicant was one of the most senior officers, he “copped a lot of abuse.”
The applicant told Dr Anand he was regularly abused by suppliers. He experienced a lot of anxiety and dread at the thought of going to work. His age and race were used against him. The bullying tactics got so bad that it was very difficult to cope.
Dr Anand recorded that the applicant was micromanaged. The CEO would shout at and humiliate him. She was “desperate” to get rid of him. She was ashamed of him because he stuttered in meetings. She said the applicant thought like a Taliban.
The applicant said he gave truthful and accurate projections, which the CEO did not like. The CEO exercised excessive control. He could not go to the toilet without asking permission or take leave to look after his sick family.
Dr Anand recorded that the applicant started experiencing anxiety, depressive mood, and panic attacks.
Dr Anand diagnosed the applicant with MDD with prominent anxiety, in the context of a pre-existing diagnosis of PTSD. The financial instability of the respondent, coupled with the CEO’s abusive behaviour, exacerbated the applicant’s psychological distress.

Ms Ayesha Farooq – clinical psychologist

Ms Farooq reported on 25 November 2024.
Ms Farooq recorded that the applicant had engaged with her following a psychological injury at work that occurred on 20 December 2018 [sic].
The applicant presented on 11 June 2024 with symptoms of severe anxiety and depression. The applicant reported flashbacks and vivid dreams related to workplace bullying.
Ms Farooq diagnosed the applicant with adjustment disorder leading to PTSD with anxiety features. There was no evidence to date of any pre-existing psychological issues, and the applicant’s work injury was the cause of his psychological injury.

SUBMISSIONS

The submissions have been recorded, and a transcript is available. I will therefore refer to the main points.

Respondent

The respondent relied upon Ms Afeaki’s statement with respect to the background as to why the applicant was being made redundant. It submitted this was happening for the better part of a year.
The respondent submitted there was an email to the applicant, a conversation with him, and then a letter confirming the redundancy. That was in the context of fairly major changes within the organisation in terms of accounting practice, which was where the applicant’s role fitted in.
The respondent submitted the applicant would have known for some time there were changes ahead, and eventually there was this change.
As regards whether the applicant’s injury was wholly or predominantly due to the respondent’s action, the respondent relied on Dr D’Abrera’s reports. There was a medical opinion that the dismissal from employment was the predominant cause of the applicant’s injury.
The respondent submitted this was a proper redundancy. It was not designed to get rid of the applicant but was because of a complete change of how the accounting system was to be managed.
The respondent submitted the applicant had a pre-existing history of depression, PTSD, and anxiety.
The respondent referred to the applicant’s clinical records, submitting that his consultations by and large did not have anything to do with his work. Apart from an attendance in June 2023 and March 2024, they did not deal with complaints about work.
The respondent submitted the applicant had a very florid psychiatric history, but maintained his employment, and there were no issues until the redundancy occurred. It submitted I would accept the opinion of Dr D’Abrera.
The respondent did not rely on any submissions in reply.

Applicant

The applicant submitted I would have to deal with “wholly and [sic] predominantly” and the reasonableness of the respondent’s action.
The applicant submitted he came to work for the respondent as “damaged goods”, which is relevant to the way in which he was treated and his unfortunate reaction.
The applicant submitted there was a concerted effort by the respondent to reduce costs, and on the evidence of the applicant and co-workers, the number one way of doing that was to force people out. The consequences started taking effect from about June [2023], which was when there was an escalation in the way the applicant was treated.
The applicant submitted Ms Afeaki had not touched in her statement on the evidence given by [HR]. The applicant referred to the evidence of HR and submitted it did not accord with what happened at the time his position was made redundant.
The applicant referred to the emails he sent in June 2023. He submitted they gave credence to what he said was going on, with respect to the motivations of his employer over this 12 month period.
The applicant referred to the statements of Mr Siasoco and Ms Chen as supporting his evidence. Ms Chen’s evidence tied in perfectly with applicant seeking treatment at that time.
The applicant conceded there was no detail relative to the cause of his anxiety and depression, for which he was being treated in May 2023 and June 2023 but referred to the decision in Davis v Council of the City of Wagga Wagga.[1] He referred to the GP’s more comprehensive reports.
[1] [2004] NSWCA 34 (Davis).
The applicant submitted the redundancy was not recorded by the GP on 26 March 2024. The applicant was getting treatment, and the redundancy was not mentioned until 4 April 2024.
The applicant submitted that neither the clinical material nor the factual material supported that the redundancy was the whole or predominant cause of his decompensation.
As regards the reasonableness of the respondent’s action, the applicant submitted he was a worker of 14 years’ standing. The respondent was given recommendations and tools regarding the redundancy process by an HR professional, but did not use them. The applicant was “dragged into” a meeting at 4pm, with no support person, no notice, no invitation to consult or make any submissions – “you’re out”. That was on a background of what had gone on for the previous nine plus months.
The applicant submitted the respondent had failed to establish to the requisite standard “wholly or predominantly”. If I were not convinced, the respondent certainly failed on reasonableness. The explanation provided by Ms Afeaki might be reasonable, but that clearly did not make the manner in which it was done reasonable. The respondent’s own evidence spoke against that.
The applicant submitted that Dr D’Abrera provided an equivocal opinion. He said the redundancy played a significant role. He was accepting at face value the respondent’s evidence, which did not withstand analysis.
The applicant submitted Dr Anand’s opinion was more comprehensive and looked at the picture more wholistically.
The applicant embraced the fact that he had prior psychological problems, but submitted he maintained a senior role and was paid a significant wage to perform the role for 14 years without apparent problem until the company had financial problems in late 2023. He then became expendable.
The applicant referred to his complaint to HRC and his testimonials. He submitted the latter would allow a comfortable inference that Ms Afeaki had seized upon perceived inefficiencies with a view to forcing him out of the workplace, and when that did not work, making him redundant in a fashion that was not reasonable.
The applicant submitted the respondent had failed to discharge its onus in establishing not only whole or predominant cause, but also whether the redundancy was handled reasonably.

SUMMARY

I will firstly deal with the respondent’s application to reopen this matter, to which I have referred above, and the reasons why it has been refused.
The respondent’s application has been reproduced in its entirety. The respondent provided no submissions in support of its request, no detail as to the content or relevance of the new evidence it had received, including why this evidence had not previously been available and when it had become available, and did not request that the matter be listed before me to allow for oral submissions in support of its application.

The new evidence is stated to be addressed to whether the respondent acted reasonably “in its redundancy actions.”
The issue of the reasonableness of the respondent’s action with respect to retrenchment and/or dismissal was raised in the respondent’s dispute notice dated 29 August 2024.
The respondent maintained its reliance on s 11A of the 1987 Act after reviewing its decision, at the preliminary conference, and at the conciliation/arbitration hearing. It was clear to both parties that it was central to the liability dispute, and indeed it became the only issue to be determined at the hearing.
The respondent foreshadowed at the preliminary conference on 30 April 2025 that it may seek to rely on further factual evidence.
That evidence took the form of a further factual investigation dated 6 June 2025, further documents relating to the redundancy (dated either March 2024 or April 2024), and Ms Hillen’s statement, which as I have noted is dated 26 June 2025.
The evidence, apart from Ms Hillen’s statement, was served on 11 June 2025. Ms Hillen’s statement was served on 2 July 2025.
The respondent sought leave at the conciliation/arbitration hearing to rely on the above additional evidence. The applicant did not object to the respondent relying on that evidence, and it was therefore admitted. The respondent therefore had every opportunity to provide evidence in its case.
The matter proceeded to hearing. The respondent did not seek an adjournment in order to adduce further evidence.
Some 13 days later, the respondent applied to reopen the matter. Unsurprisingly, the applicant opposed the application.
The guiding principle to be applied to practice and procedure in the Commission is to be found in Personal Injury Commission Act 2020, which provides:

“42 Guiding principle to be applied to practice and procedure

(1) The "guiding principle" for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it--
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3) Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission--
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.”

It would not facilitate the “just, quick and cost effective” resolution of the issue in these proceedings to allow the respondent to reopen its case to rely on further evidence on the issue of redundancy, an issue it first raised almost 12 months ago.
As the respondent conceded, should it be permitted to rely on further evidence, the applicant would obviously require further evidence to respond. A matter that has proceeded to its conclusion would be unnecessarily prolonged, in circumstances where there is no dispute that the applicant is suffering from a psychological condition. That would obviously be an unsatisfactory outcome.
I will now turn to the issue in dispute.
Section 11A of the 1987 Act provides:

“11A No compensation for psychological injury caused by reasonable actions of employer

(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A "psychological injury" is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(6) This section does not extend the definition of "injury" in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as "stress" or "stress condition".
(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”

The respondent bears the onus of establishing a defence pursuant to s 11A of the 1987 Act: Pirie v Franklins Ltd[2]; Department of Education and Training v Sinclair.[3]
[2] [2001] NSWCC 167; (2001) 22 NSWCCR 346.
[3] [2005] NSWCA 465; 4 DDCR 206.
The respondent must establish both that the applicant’s psychological injury was wholly or predominantly caused by its action with respect to retrenchment or dismissal, and that its action was reasonable. The parties have sometimes referred to “redundancy”, rather than “retrenchment”.
The applicant did not submit that the action on which the respondent relied was not action with respect to retrenchment or dismissal.

Was the applicant’s injury wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to retrenchment or dismissal?

“Wholly or predominantly” has been held to mean “mainly or principally caused”: Ponnan v George Weston Foods Ltd. [4]
[4] [2007] NSWWCCPD 92 (Ponnan).
Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd. [5]
[5] [2008] NSWWCCPD 96 (Temelkov).
Roche DP dealt in Temelkov with causation, applying Kooragang Cement Pty Ltd v Bates.[6] He said, “causation is a question of fact to be determined by the evidence in each case.”
[6] (1994) 35 NSWLR 452; 10 NSWCCR 796.
The applicant’s evidence is summarised above. He has provided detail of how he claims the respondent, and particularly Ms Afeaki, treated him over a period that according to him commenced in 2018, when he claims he first sought treatment from his GP for bullying at work.
The respondent’s witnesses have denied many of the applicant’s allegations, in particular of racism, and preventing the applicant from practising his religion.
The applicant’s evidence finds some support from Ms Chen and Mr Siasoco, and even from Ms Afeaki, who has referred to the applicant taking offence when errors were identified and accusing her of bullying and nitpicking. The issue regarding providing medical certificates for absences has also been confirmed, as has Ms Afeaki having sometimes shut the applicant down in meetings. Ms Afeaki also stated the applicant sometimes used “the racial card”.
However, none of these events was recorded by the applicant’s GPs as being causative of his condition before June 2023.
The applicant complained to Dr Anand of added pressure at work during COVID-19. On the contrary, Dr Rositano recorded on 9 February 2022 that there was no financial or increased work stress, and the applicant was feeling good in the context of the pandemic.
Apart from a reference on 8 February 2023 to the applicant’s job being very demanding, and a notation on 24 January 2024 that the applicant had a stressful job, there is no reference to the applicant’s employment causing him psychological distress until 19 June 2023, when Dr Carpio recorded “workplace bullying”, but also issues with a friend’s divorce.
The next reference to the applicant’s work as being a source of his condition was on 4 April 2024, after his position had been made redundant, with mention of being “bullied”. The applicant wanted to claim WorkCover, and Dr Yang warned him of the possibility of the claim being rejected. This was somewhat less optimistic than the lawyer who was alleged to have told the applicant he had “100% chance of success.”
As the applicant submitted, caution must be exercised in relying on clinical records, citing Davis. Inconsistencies between a party’s evidence and medical histories in clinical notes was also discussed by Basten JA in Mason v Demasi.[7]
[7] [2009] NSWCA 227.
Whilst I am mindful that the weight of material in medical records must be assessed against their purpose and nature, a feature of the GPs’ evidence in this matter is that none of the MHCPs prepared for the applicant referred to his employment as a source of his condition.
None of the referrals to other practitioners mentioned the applicant’s employment before 19 June 2023, when a referral for psychological treatment referred to anxiety and workplace bullying. Even the referrals dated 26 March 2024 made no mention of workplace stressors or bullying.
Dr Yang’s report dated 30 October 2024 does not accurately reflect the clinical records, which are mostly quite detailed, and, as I have noted, it appears to have been provided after the applicant wrote to Dr Yang, setting out numerous issues that had not previously been recorded. I have given the report little weight.
Dr Toohey recorded in May 2022 that the applicant had been discriminated against and insulted by members of his housing association. Had the applicant also experienced similar treatment at work, I would expect that he would have told Dr Toohey about this.
Apart from in June 2023, none of the applicant’s treating practitioners in fact referred to his employment as a stressor until after his position had been made redundant.
Dr Anand, in a 26 page report, recorded that the applicant had not applied for any jobs after he was made redundant; and had worked for the respondent for about 15 years until he was made redundant on 27 March 2024.
These are the only references I was able to find to the applicant’s position having been made redundant. Dr Anand has not recorded any history of the applicant’s reaction to the redundancy. The applicant has described in his evidence his “panic and shock”. Ms Afeaki emailed him a copy of his redundancy notice, as he had refused to accept it.
Dr Anand was asked to comment on Dr D’Abrera’s reports, but made no comment on Dr D’Abrera’s conclusion that the predominant cause of the applicant’s injury was his dismissal. The respondent of course bears the onus, but evidence from Dr Anand that specifically addressed this issue may have been of assistance. The fact that he has referred to the redundancy only in the context of the applicant’s employment history in my view diminishes the weight of his opinion.
In Hamad v Q Catering Limited[8], Snell DP said (at [88]):
“The extent to which aspects of the applicant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[8] [2017] NSWWCCPD 6.
Having reviewed the evidence, I accept Dr D’Abrera’s opinion. I am satisfied that the applicant’s injury was predominantly caused by the respondent’s action with respect to retrenchment.

Was the respondent’s action reasonable?

In Irwin v Director General of Education[9], Geraghty CCJ said:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of the employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[9] NSWCC 14068/97, 18 June 1998, unreported (Irwin).
In Northern New South Wales Local Health Network v Heggie[10], Sackville AJA considered the application of s 11A of the 1987 Act, specifically with respect to “discipline”, but his conclusions are nonetheless more widely applicable.
[10] [2013] NSWCA 255.
At [59], Sackville AJA said:
“The following propositions are consistent with both the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) 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. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (Emphasis in original).
The factual matrix of this matter commences with the applicant having been employed by the respondent for over 14 years when his position was made redundant, at which time he was 59 years old. He held a senior position with the respondent.
Ms Afeaki’s evidence is that the respondent had realised some time before the applicant’s position was made redundant that there was a need for the accounts team to move from simply reporting to a more strategic focus. According to Ms Afeaki, the “process” had started about a year before the applicant was made redundant, although the decision about his redundancy was more recent.
There was a six-month period during which a contractor was employed, and Ms Afeaki realised at this time that the applicant would not fit into the accounting upgrade. There is no evidence that there was any discussion with the applicant about what this upgrade may mean for him, or whether the respondent could still utilise his skills. Ms Afeaki, however, had “multiple conversations” with Ms Hillen about the need to restructure.
The applicant was not given the opportunity to assess whether he had a future with the respondent, and whether he should remain, hoping to either retain a position or obtain a redundancy payment, or attempt to obtain other employment.
The applicant was given no prior notice of the meeting at which he was advised his position was to be made redundant, and it was “shocking” to him. He was not offered the opportunity to have a support person attend the meeting. He had no opportunity to seek legal advice had he wished to do so. He was given “a whole day” to remove his personal belongings, accumulated over a period of over 14 years.
The applicant was not given the option of working out a period of notice, which would have provided him with the opportunity to search for work while still being able to present himself to prospective employers as being in employment.
The applicant was not offered, for example, career counselling or job placement services. The respondent’s correspondence to him does not refer to the availability of an employee assistance program, a service that is often provided to employees who have been negatively affected by an employer’s action, for example during a disciplinary or redundancy process.
Ms Hillen’s evidence is that she gave Ms Afeaki “all the tools and information” she needed to run the meeting with the applicant, and “as far as she was aware”, the applicant was allowed to respond, and “would have” been given notice of the meeting and allowed to bring a support person. The processes and policies she referred to are not in evidence. There is no evidence that they were followed.
Ms Afeaki’s evidence does not confirm any of the evidence given by Ms Hillen. Ms Hillen did not attend the meeting, meaning that Ms Afeaki had no input from an HR professional during the meeting itself.
It is clear from Ms Afeaki’s evidence that the respondent had concluded that major changes had to be made to ensure its continued viability. The respondent was obviously entitled to take into account whether its current employees were those best suited to its new structure. However, as was held in Irwin, the rights of employees must be weighed against the object of the employment.
The respondent’s evidence falls far short of establishing that its action with respect to the applicant’s retrenchment was reasonable. When “questions of fairness” are considered, the respondent has failed to meet its onus in this regard.

There will therefore be an award for the applicant.
The respondent concedes that the applicant has at all relevant times had no capacity for work.
The parties have agreed on the applicant’s PIAWE and the appropriate award of weekly benefits.
The applicant is entitled to a general order for medical expenses.
My findings are as follows:
(a)    the applicant has sustained a psychological injury, deemed to have happened on 26 March 2024;
(b)    the applicant’s employment was the main contributing factor to the injury;
(c)    the applicant’s injury was predominantly caused by the respondent’s action with respect to retrenchment;
(d)    the respondent’s action with respect to retrenchment was not reasonable; and
(e)    the applicant has at all material times had no capacity for work.
The orders are set out in the Certificate of Determination.

[2025] NSWPIC 402

13 August 2025