Ali v Sydney Night Patrol & Inquiry Co Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ali v Sydney Night Patrol & Inquiry Co Pty Ltd [2023] NSWPIC 468
APPLICANT:	Kabir Ali
RESPONDENT:	Sydney Night Patrol & Inquiry Co Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	13 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4 and 11A(3); psychological injury disputed; section 11A(1) whether psychological injury wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline and/or dismissal; incapacity; Brines v Westgate Logistics Pty Ltd, AV v AW, Ariton Mitic v Rail Corporation of NSW, Attorney General’s Department v K, Stewart v NSW Police Service, Northern NSW Local Health Network v Heggie considered and applied; Held – the applicant has sustained a psychological injury arising out of or in the course of his employment on the deemed date of 30 July 2022; the applicant’s employment was the main contributing factor to the psychological injury; the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline and/or dismissal; the applicant has had no current work capacity from 24 October 2022 to date and has no current work capacity.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury arising out of or in the course of his employment on the deemed date of 30 July 2022. 2. The applicant’s employment was the main contributing factor to the psychological injury. 3. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline and / or dismissal. 4. The applicant has had no current work capacity from 24 October 2022 to date and has no current work capacity. The Commission orders: 1. The respondent is to pay the applicant the following: (a) $502.48 per week from 22 October 2022 to 31 March 2023 pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act), and (b) $523.28 per week from 1 April 2023 to date and continuing pursuant to s 37 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Mr Kabir Ali, the applicant, alleges that he sustained a psychological injury on the deemed date of 30 July 2022 due to being subjected to inappropriate termination of his employment with Sydney Night Patrol & Inquiry Co Pty Ltd, the respondent, verbal abuse from managers and colleagues as well as allegations that were unable to be sustained.
The applicant seeks weekly benefits compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 24 October 2022 and ongoing.
The applicant was employed by the respondent from 6 July 2022 to 22 August 2022 working as a greeter at Sydney airport.

ISSUES FOR DETERMINATION

The following issues are in dispute:
(a)    whether the applicant sustained an injury as defined by s 4 of the 1987 Act;
(b)    whether the applicant sustained a psychological injury as defined by s 11A(3) of the 1987 Act;
(c)    whether any psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline and dismissal, and
(d)    whether the applicant had/has an incapacity due to the claimed injury.
The applicant’s pre-injury average weekly earnings (PIAWE) is agreed by the parties at $607.62.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
14 July 2023. Mr Ty Hickey, counsel, instructed by Ms Zahra Panju, solicitor, appeared for the applicant, who was present. Mr James McEnaney, counsel, appeared for the respondent, instructed by Ms Pheobe Singer, solicitor. 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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 23 May 2023 filed by the respondent and attached documents;
(d)    Application to Admit Late Documents dated 3 July 2023 filed by the applicant and attached documents;
(e)    Application to Admit Late Documents dated 10 July 2023 filed by the respondent and attached documents, and
(f)    Application to Admit Late Documents dated 19 July 2023 filed by the respondent and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

Oral submissions were made on behalf of the applicant with written submissions being provided by the respondent and the applicant in reply.

FINDINGS AND REASONS

Consideration and findings

The applicant alleges that he sustained a psychological injury on the deemed date of
30 July 2022 due to being subjected to inappropriate termination of employment, verbal abuse from managers and colleagues as well as allegations that were unable to be sustained.

The applicant seeks weekly benefits compensation pursuant to s 37 of the 1987 Act from
24 October 2022 and ongoing.

Credibility of the applicant

The respondent submits that there are significant issues with respect to the applicant’s evidence in that:
(a)    he failed to disclose a previous psychological injury and the related workers compensation claim to any of the doctors who assessed his injury;
(b)    he failed to disclose the same injury to his solicitors, and states that he only remembered the claim after the entire insurer claim file for the previous workers compensation claim was served, and
(c)    when queried by the respondent about the significant number of incoming payments to his bank account the applicant’s explanation was that the payments are for “tax related income for arrears dating back to work I carried out last year and the year prior” and payments relating to payment of software license fees.
The applicant admits that he did not disclose to his solicitors that he had sustained a prior psychological injury for which he had made a workers compensation claim.
The applicant attributes his failure to disclose the previous psychological injury and the associated workers compensation claim to having an “appalling” memory as well as an “appalling” ability to comprehend questions. It is the applicant’s evidence that when his solicitor’s had asked him whether he had any previous workers compensation claims, he misunderstood the question believing that he was being asked whether he had any current workers compensation claims. He assumed that his previous claim was not relevant as it related to an incident in 2014.
Contradictorily the applicant states:
“I truly assumed that a claim I had lodged almost a decade ago would be irrelevant to any claim I had presently on foot. I had completely forgotten about it due to my ability to recall information and past events being so appalling.”[1]
[1] ARD p 1.
I do not accept the applicant’s explanation for his failure to disclose his previous psychological injury and the associated workers compensation claim for the following reasons.
The applicant made a workers compensation claim in or about August 2014 for a psychological injury sustained in August 2014. The claim was accepted, and compensation paid including weekly benefits from 2014 to August 2019. The applicant’s treatment for the injury included attending on a psychologist and psychiatrist as well as regular attendances on his general practitioner (GP), Dr Magdy Girgis, whom he last consulted in respect to the injury on 30 July 2019.
The injury and the compensation claim were clearly significant events in the applicant’s life which one would be highly unlikely to simply fail to recall due to having a poor memory, especially in light of the ongoing attendances on the GP and the payment of weekly benefits compensation for approximately five years, until mid-2019.
The applicant has provided a number of statements in this matter. In a statement made on 18 September 2022 he states that he had no prior psychological injuries that he could recall and in his statement made on 25 October 2022 he states at [8]:
“Prior to the index injury I had never sustained any physical or psychological injuries.”
This is a complete and unambiguous denial of any previous psychological injuries. The applicant’s belief as to the relevancy of the previous injury is not a factor in this statement as the applicant is unambiguously stating that he had “never sustained” a prior psychological injury.
Whilst the applicant claims that his memory is “appalling” his statements of
18 September 2022 and 25 October 2022 both contain considerable detail in respect to his recollections of what had occurred in the workplace with the respondent.
In addition to failing to disclose the previous psychological injury and workers compensation claim in his statements of 18 September 2022 and 25 October 2022 the applicant also failed to make the disclosure to the psychiatrists, Dr Abhishek Nagesh and Dr Iftikhar Ahmad.
The applicant was examined by Dr Nagesh, at the request of his solicitors on
28 October 2022 at which time the applicant denied any previous history of mental illness as well as denying any previous workers compensation history. The applicant was examined by Dr Ahmad, on 13 September 2022 on behalf of the respondent at which time he denied any previous claims and past mental health history.
Keating P in Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 (Brines) observed at [78]:
“Where a worker has given untruthful evidence the Arbitrator must carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of the evidence may have been acceptable because other independent or objective evidence confirmed it. However, where a worker’s evidence was not independently supported it clearly must be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings (see Malco Engineering Pty Ltd v Feereira and others (1994) 10 NSWCCR 117 and Divall v Mifsud (2005) NSWCA 447).”
I do not accept that the applicant failed to disclose his previous psychological injury and associated workers compensation claim either due to poor memory or a belief that it was irrelevant. I find on the balance of probabilities that the applicant made a conscious decision not to disclose the prior injury or workers compensation claim and therefore it is necessary to carefully assess the rest of the applicant’s evidence to determine its honesty and reliability.

Injury

The applicant alleges that he sustained a psychological injury on the deemed date of
30 July 2022 due to being subjected to inappropriate termination of his employment, verbal abuse from managers and colleagues, being the subject of unsubstantiated allegations, not being listened to in the course of an investigation and closed-circuit television (CCTV) footage having not been reviewed.
The respondent disputes that the applicant has sustained a psychological injury and submits that the opinion of the psychiatrist, Dr Ahmad, that the applicant does not fulfil the criteria for any major mental health conditions, as per DSM-5 criteria, should be accepted.
In support of his claim the applicant relies on the opinion of the psychiatrist, Dr Nagesh, as well that of the GP, Dr Mady Girgis, and the treating psychologist, Dr Anupama Naithani.
Section 4 of the 1987 Act defines “injury” and relevantly states:
“injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes—
(i)a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”
In AV v AW [2020] NSWWCCPD 9 (AV) Deputy President Snell discussed the definition of “main contributing factor” observing at [77]:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.”
Arbitrator Harris in Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic) stated:
“The opening words of the amended s. 4(b)(ii) relate to the aggravation, acceleration, exacerbation or deterioration ‘in the course of employment of any disease’. In my view, those opening words therefore direct attention to the work-related component of the ‘aggravation, acceleration, exacerbation or deterioration’. The following words of clause (ii) then state ‘but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’. The concluding words of clause (ii) requires an examination of whether the employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process…
In my view, the amendment to s 4(b)(ii) does not require the applicant to establish that the employment must be the main contributing factor to the overall disease process or pathology within his left knee but simply that the employment must be the main contributing factor to the injury, that is, the aggravation, acceleration, exacerbation or deterioration of such disease.”
It is also necessary to determine whether the workplace events which allegedly caused the psychological injury actually occurred and that those events were perceived by the applicant as creating an offensive or hostile working environment. Roche DP in Attorney General’s Department v K [2010] NSWWCCPD 76 (K), in considering the issue of establishing psychological injury stated at [52]:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan)
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
The applicant bears the onus of proof in respect to injury.

The incidents

The applicant alleges that a number of incidents occurred in the workplace which have caused psychological injury.
21 July 2022
It is the applicant’s evidence that he commenced employment with the respondent on
[2] Reply p. 59.
7 July 2022, that the induction and training of staff was a “little messy” and that the training steps were “unorganised”.[2] That he only received his login details via email on 21 July 2022. That logging in was quite difficult and that his issues started when he was trying to log in each shift.
It is the applicant’s evidence that on 21 July 2022, he approached his team leader,
Mr Rahman, prior to attempting to login and asked Mr Rahman how to do the login process. At the time Mr Rahman wanted to help and he asked the applicant to come to his area and he would show him how to do it. The applicant went to the login area with Mr Rahman who asked the applicant to enter his personal email address and email address password. The applicant told Mr Rahman that this could not be right as he was logging in at work and he should not be using his personal details on a work computer.
It is the applicant’s evidence that Mr Rahman instantly became upset and angry and told him if he knew how to login then he could login himself and that he was no longer going to help him. It is the applicant’s evidence that he remained “cool and calm” whilst Mr Rahman was upset. Because Mr Rahman was getting angry the applicant agreed to put in his personal email address and password which did not work and since that time Mr Rahman became “very unfriendly and ignorant” with him in many ways.
It is the evidence of Mr Rahman that the applicant was appropriately trained, that the IT department would have sent an email to the applicant advising him how to logon. It is the evidence of Mr Rahman that the applicant approached him and advised that he had not received the logon instructions from IT. Mr Rahman advised the applicant that if that was the case then the easiest way was to put his email address and password into the computer and then he would need to put in his employee number and pin number.
It is the evidence of Mr Rahman that he received a “smart-ass” response from the applicant saying that he did not want to put in his personal email address and password as he believed it was private. Mr Rahman then advised the applicant that if he did not want to proceed down that path, then he would need to contact IT himself as the way which he had explained was the easiest way and the only way he knew how.
It is the evidence of Mr Rahman that the applicant was quite argumentative and that he
(Mr Rahman) was never loud or aggressive to the applicant during the conversation.
Mr Rahman does not state what occurred next, and in particular whether the applicant did in fact key in his email address and password and whether that process failed.
Whilst there are differences between the evidence of Mr Rahman and the applicant there is no dispute that the applicant on 21 July 2022 did request the assistance of Mr Rahman to login, that the applicant was requested by Mr Rahman to use his personal email address and password, that the applicant questioned whether this was correct. Whilst it is the evidence of Mr Rahman that he was never loud or aggressive during the conversation he would appear to have been at least irritated by the applicant whom he believed had given him a “smart-ass” response and who in his opinion was being “quite argumentative”.
Interestingly it is the evidence of Mr Yilmaz Ozdemir, a Duty Shift Manager who had been with the respondent for 13 years, that as far as he is aware logging in is easy and at no time does he believe staff need to provide their own personal email addresses and their own personal home email password.

(2) 22 July 2022

It is the applicant’s evidence that at the commencement of his next shift on 22 July 2022 he tried to login on his own, but whilst attempting to do so, Mr Rahman, who was sitting in a chair nearby at no time asked if he needed help, even when the applicant tried to get his attention on a couple of occasions, he was not paying attention to him. Somewhat inconsistently the applicant states that Mr Rahman did give a direction from his chair. It is the applicant’s evidence that he felt under pressure and started sweating whilst logging in and that he felt very bad due to how long it took. It is the evidence of Mr Rahman that he cannot recall this day.

(3) 28 July 2022

It is the applicant’s evidence that on 28 July 2022 he was working near the border guard area directing customers through and standing looking at the passport check-in area looking out for a flight crew. A border officer was looking at him very angrily and kept starring at him which was making him uncomfortable. It is the applicant’s evidence that he politely asked the border officer if he was looking at him and that immediately the border officer started shouting at him saying “What are you doing here? You are not supposed to be here” and this continued for a couple of minutes.
It is the applicant’s evidence that he did not know what he was doing wrong and that he told the border officer that he was looking out for the flight crews. At the same time Mr Rahman called him so the applicant left the area. A few moments later the applicant saw the same male border officer talking to Mr Rahman and the applicant assumed that he was making a complaint.
It is the applicant’s evidence that during the afternoon of 28 July 2022 he was talking to
Mr Rahman about what had occurred with the border officer whilst Mr Rahman was ignoring him. That a female employee unknown to the applicant approached Mr Rahman and that
Mr Rahman then completely ignored him and started talking to the female employee. It is the applicant’s evidence that he felt bad that he was being ignored and that he felt that he was wasting his time. As Mr Rahman was ignoring him, he told Mr Rahman that he was going on his break, but before he went he told the female employee, to whom Mr Rahman was speaking, that he had been talking to Mr Rahman before her.
It is the applicant’s evidence that when he returned from his break, Mr Rahman approached him and was very angry with him, asking why he had said what he did to the female employee. The applicant explained to Mr Rahman that he had been talking to him first and she had just interrupted them. It is the applicant’s evidence that Mr Rahman told him that he was rude and disrespectful and that he should not have done what he had done. The applicant asked Mr Rahman if he was going to sack him, and Mr Rahman told him that if he did not know what was going on he would take him “to the man” and he was taken to the office where they spoke to Simar.
It is the evidence of Mr Rahman that on 28 July 2022 he was speaking to the applicant, possibly about break times, when the terminal supervisor, Belinda, approached them and requested to speak to Mr Rahman. It is Mr Rahman’s evidence that he advised the applicant to “hold” and that he just needed to speak to Belinda. Whilst he was speaking to Belinda the applicant interrupted and said to Belinda “I was talking to Rahman, you are interrupting us”.
Mr Rahman was stunned by the way the applicant had spoken to Belinda who was one of
Mr Rahman’s bosses and he politely said to the applicant “Kabir, please give us a second, I will get back to you”. The applicant rudely responded in an argumentative manner that he was talking to Mr Rahman. Mr Rahman then told the applicant to go back to his position and he would get back to him following which the applicant left and he finished the conversation with Belinda.
It is the evidence of Mr Rahman that one of the Customs officers then approached him and asked who the applicant was and why he was entering and exiting the restricted area especially as he was not wearing the prescribed uniform, a scarf. Mr Rahman advised the Customs officer that the applicant was one of the new greeters. The Customs officer advised that they needed to take care of him. He then advised that he had approached the applicant and tried telling him, but he was not happy with the applicant’s behaviour towards him.
Mr Rahman advised the Customs officer that he would take care of it and that the applicant was new and may not know all the restricted areas.
It is the evidence of Mr Rahman that he then approached the applicant and took him aside to tell him about the complaint made by the Customs officer as well as his behaviour in front of Belinda. The applicant immediately responded in respect to entering the restricted area “why not, as other staff do”. It is Mr Rahman’s evidence that the applicant was quite argumentative, saying that it was unfair. According to Mr Rahman the applicant “just did not know when to stop” and was not listening to what he was trying to tell him. To show the applicant the importance of what he was telling him, Mr Rahman suggested that they go and see Simar, the respondent’s operational manager, which they did.
Whilst there are differences in the evidence, the evidence supports that the applicant did have a discussion with a Customs or Border officer in respect to his being in a particular area, that a discussion between the applicant and Mr Rahman was interrupted by Belinda, that the Customs or Border officer did speak to Mr Rahman about the applicant and that
Mr Rahman did speak to the applicant about how he had spoken to Belinda and about the complaint from the Customs or Border officer. The evidence also supports that both the Customs officer and Mr Rahman where at the least unhappy with the applicant.
It is the applicant’s evidence that he was taken to the office by Mr Rahman, and they spoke to Simar. It is the applicant’s evidence that both Simar and Mr Rahman spoke to him angrily. That they also told him that he was no longer to wear a scarf, which according to the evidence of Mr Rahman the Customs officer had complained about. They told him that he was not to go into certain areas which the applicant accepted.
It is the applicant’s evidence that he asked them why they were being so hard on him to which they responded that they could go soft on him and take him to Human Resources (HR), and they could deal with him. It is the applicant’s evidence that because of the stress and pressure which he was under and because his mind was not feeling well due to everything that had happened in the last week, he asked Simar for a day off which was refused, and he went back to work.
It is the evidence of Mr Rahman that he did take the applicant to see Simar and that they discussed the “issues at hand” and the importance of not entering the restricted areas and told the applicant that he was not to wear his scarf. During the discussion the applicant remained a little argumentative but seemed to accept what they were saying. It is
Mr Rahman’s evidence that he does not recall the applicant indicating that he was mentally unwell or that he needed to take time off.
There is no statement from Simar in evidence.
The evidence supports that Mr Rahman did take the applicant to meet Simar. That a meeting between Simar, Mr Rahman and the applicant did take place. That issues were discussed including that the applicant was told not to wear his scarf, and what areas he was not to go into.

(4) 30 July 2022

It is the applicant’s evidence that on 30 July 2022 he was approached by two Border Force officers (one male and one female) as well as the team leader, Sandra (Ms Maure). The female Border Force officer started talking to him very angrily, making accusations and asking why he had approached her staff and why he was asking their names and accusing him of being a sexually violent person. It is the applicant’s evidence that he did not understand what was going on. She accused him of following her staff, which the applicant denied. It is the applicant’s evidence that he only asked the staff members name once. She threatened to call the police and have him arrested, she also threatened to review the CCTV footage. The applicant responded that he had not done anything wrong, and that they should go ahead and view the CCTV footage. The Border Force officer advised Ms Maure to remove the applicant from the area. Ms Maure told the applicant to leave which he did.
It is the applicant’s evidence that Ms Maure took the applicant to the log out area where she advised him that they needed to make a report, that he needed to go home and that if he wanted to know anything further, he needed to speak to the duty manager.
It is the applicant’s evidence that he approached the duty manager who did not want to talk to him and who started shouting at him and said that if he did not leave immediately, he would call the federal police. The applicant then left the airport in a panic.
It is the applicant’s evidence that a few days later he was contacted by HR and advised that they were going to conduct an investigation into the allegations. They took his statement, and he was stood down with pay.
It is the evidence of Ms Maure that on 30 July 2022 she was told that the Customs supervisor wanted to speak to her. She spoke to a female Customs officer who said that she wanted her to be a witness. The Customs officer asked if they could go aside from other people and then she started to repetitively ask the applicant why he was asking for the name of one of her officers. The applicant replied that he had only asked once as he thought that he knew her.
The Customs officer continued to question the applicant several more times as to why he was asking for her officer’s name, but the applicant kept responding and saying that he only asked for her name once, as he thought that he knew her. The Customs officer then said that she was going to view the camera footage to see what he was doing. She was making threats.
It is the evidence of Ms Maure that to this point in the conversation the Customs officers voice was at a normal tone. She then asked the applicant if he knew what sexual harassment was, to which he replied that he did, and that he did not mean anything by asking for her name. The applicant started to ask the customs supervisor why she was talking to him like that which Ms Maure thought was back chatting. The Customs supervisors voice then became a little louder and abrupt. The customs supervisor then asked Ms Maure if she had any input to which she replied that her input would be between her, her manager and the applicant. The customs supervisor then said that the conversation was over and said to the applicant that she did not want to see him even look her way. According to Ms Maure at no time during the conversation did the Customs officer refer to the police or that she would have him arrested.
It is the evidence of Ms Maure that the applicant was told that he needed to make a report which he did and that he had to go home. Ms Maure did not know if the applicant spoke to her manager, Yilmaz Ozdemir. In early August approximately a week after the applicant ceased working at the airport the federal police approached Ms Maure asking to speak with the applicant.
Event Reports completed by Ms Maure on 25 August 2022 and 29 August 2022 are essentially consistent with the statement evidence of Ms Maure.
It is the evidence of Mr Ozdemir, a Duty Shift Manager with the respondent, that on
30 July 2022 Ms Maure approached him whilst she was having a discussion with the applicant and said that they had just had a discussion with Customs, and that Customs had made an official complaint about the applicant and his presence within Customs/queuing area. Mr Ozdemir was shocked as he understood that the applicant had only been spoken to on the 27^th and 28^th about not being in that area.
It is the evidence of Mr Ozdemir that he immediately went to customs and spoke to the Duty Manager, Belinda, as well as John who was one level down from Belinda and another female Customs officer. They advised that they were very concerned about the presence of the applicant within the Customs area as well as that he was following the female Customs officer, who was present during the conversation, from one end of the airport to the other which had apparently occurred on both 27 and 28 July. They advised that the female Customs officer had made a complaint to them. She felt that the applicant was stalking her, and she did not want to talk to him. The female customs officer felt that the applicant would have followed her after work, and she was becoming a little scared / intimidated by the applicant.
It is the evidence of Mr Ozdemir that he was advised that the female customs officer had been relocated however the applicant had continued to follow her. Mr Ozdemir advised Customs that they would be standing the applicant down immediately which would hopefully eliminate him following or talking to the Customs officer and that they would be dealing with the matter internally. Mr Ozdemir believed that Customs were intending to contact the federal police to deal with the applicant.
It is the evidence of Mr Ozdemir that the applicant subsequently approached him and asked why he was being sent home. He advised that he was a “friendly guy” and that he just wanted to know her name. Mr Ozdemir advised that it was about him possibly harassing her. Mr Ozdemir advised the applicant that he had been spoken to a number of times about the same issues, and that he no longer wanted him on the floor and that he needed to go home and that someone would be in touch.

(5) Events after 30 July 2022 (investigation and termination)

The respondent on Sunday 7 August 2022 wrote a letter to the applicant titled “Notice to Attend Meeting”. The letter advised that the applicant was required to attend a meeting at 3pm on Monday 8 August 2022 with HR Business Partner, Vivian Assaad. The advised purpose of the meeting was to discuss four allegations of “Inappropriate behaviour which constitutes sexual harassment on multiple occasions” to which the applicant would be asked to respond. The letter advised the applicant that the alleged misconduct was considered serious and if substantiated could result in disciplinary action being taken against him including the termination of his employment.
On 8 August 2022 the meeting took place between the applicant and the respondent’s HR Business Partner, Vivian Assaad. At that meeting the applicant was questioned in respect to the four allegations.
By letter on 22 August 2022 the applicant was advised by the respondent, that they had on the balance of probabilities, determined that all allegations had been substantiated and that his employment was terminated effective 22 August 2022. The letter further advises that the federal police were investigating the matter.
The applicant complains that as part of the investigation that was undertaken in respect to the allegations made against him the CCTV footage was not reviewed. There is no evidence that the respondent reviewed the CCTV footage as part of its investigation.
Whilst there are discrepancies in the evidence as to precisely what occurred, and the conduct of the parties involved, the evidence does support that many of the incidents which the applicant claims occurred, did in fact occur.
There is no doubt that the events in the workplace created what the applicant perceived to be a hostile environment with the applicant ultimately being accused of sexual harassment, stood down from his employment, chastised by a Customs supervisor and most probably threatened with being arrested by or investigated by the federal police.

Psychological injury

Section 11A(3) of the 1987 Act states:
“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.”
To establish psychological injury, it is not sufficient that a worker suffers frustration and upset. A physiological effect and not a mere emotional impulse is required. In Stewart v NSW Police Service [1998] NSWCC 57; (1998) 17 NSWCCR 202, Neilson CCJ (as he then was) said that to prove psychiatric injury, a worker needs to prove either:
“(i) That the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse, or
(ii) The aggravation, acceleration, exacerbation or deterioration of a pre-existing condition.”
The respondent submits that the opinion of the psychiatrist, Dr Iftikhar Ahmad, should be accepted. Dr Ahmad provided two medico-legal reports for the respondent dated
26 September 2022 and 22 February 2023. In the opinion of Dr Ahmad, the applicant does not fulfill the criteria for any major mental health conditions, as per the 5^th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria. In the doctor’s opinion whilst the applicant did report some psychological distress following these incidents and perceived injustice from the respondent his reaction could be considered normal psychological distress.
I do not accept the opinion of Dr Ahmad for the following reasons.
On 16 August 2022 the applicant attended on his GP, Dr Girgis, who had treated the applicant in respect to his previous psychological injury sustained in 2014. The clinical note from the attendance records that there was a problem at his new job, that the applicant was depressed, that he was not coping well, feeling down and not motivated. The doctor considered that applicant’s condition sufficient to warrant the prescribing of the anti-depressant Avanza and referral to Dr Mark Cross, a psychiatrist who had treated the applicant in respect to his 2014 psychological injury.
Prior to attending on Dr Girgis on 16 August 2022 the applicant had last attended on the doctor in respect to a psychological complaint almost three years earlier on 30 September 2019 when the applicant complained that he had been verbally abused whilst working as a volunteer at a club. The applicant had last attended on Dr Girgis on 30 July 2019 in respect to the psychological injury which he had sustained in 2014. That there is no evidence of the applicant complaining of or receiving any treatment for any psychological condition between 30 September 2019 and 16 August 2022.
The applicant next attended on Dr Girgis on 8 August 2022 at which time he reported work related issues. The clinical note for the attendance records that the applicant was still in shock - depressed, was not coping, had insomnia, poor concentration and headache.
On 25 August 2022 Dr Girgis noted that the applicant had “work related Depression-Major”. The doctor recorded that the applicant was anxious, depressed mood-lack of interest, lack of motivation, insomnia, mood fluctuations. The doctor referred the applicant to the psychologist Dr Anupama Naithani.
The applicant first attended on Dr Naithani on 1 September 2022 at which time the applicant provides a history of issues at work. The applicant reported that he did not feel like doing anything, that nothing interested him and that he had lost enjoyment in things. Dr Nathani noted that the applicant was depressed, had low mood and felt weak.
The applicant next attended on Dr Naithani on 8 September 2022 at which time he noted that the applicant was feeling down, had low energy, his head was spinning, headache, not feeling happy, lack of motivation.
The applicant next attended on Dr Nathani on 22 September 2022 at which time the doctor noted that the applicant had felt bad, so he went for a swim and he felt better to go out. On 29 September 2022 the applicant complained of mood swings, short fuse, headaches, that he was losing control, loss of thoughts and control of thoughts, loss of confidence. On
13 October 2022 the applicant reported that he was struggling with life, low mood, mood swings, flashbacks, nightmares, worrying and ruminating. The applicant had used mindfulness which was helpful at times. On 27 October 2022 Dr Nathani noted that the situation was “difficult”, the insurer had declined liability and the applicant was talking to a lawyer. The applicant was not improving mentally and felt drained, struggling a lot, couldn’t imagine how he got into this situation and was struggling to let go. On 15 March 2023
Dr Nathani noted that the applicant was depressed with anxiety and heightened panic symptoms. The psychologist noted that the applicant was feeling severely depressed despite being on medication which helped to calm him and with his sleep. The applicant expressed that he wanted to get back to normalcy. On 23 March 2022 the Dr Nathani noted poor concentration and focus, and that the applicant struggled to engage with therapy, that he was constantly worrying and ruminating with a short attention span. On 30 March 2023
Dr Nathani took background history from the applicant in order to prepare a report for the applicant’s solicitors and on 6 April 2023 Dr Nathani noted headaches, low stress tolerance, financial stress (not received payment from insurer), inability to speak to anyone, situational stress, inability to relax, lack of confidence, poor attention span.

On 10 October 2022 Dr Nathani reported to QBE. The psychologist noted that the symptoms reported during his consultations with the applicant included headaches, head spinning, nervousness, anxiety, panic symptoms, feeling unhappy, low mood, poor concentration and motivation, ruminating and worrying, intrusive thoughts, loss of confidence and belief in himself, lost of enjoyment and withdrawn and avoidant. Dr Nathani provided a provisional diagnosis of an adjustment disorder mixed with severe anxiety and depression symptoms. The condition in the opinion of Dr Nathani was work related having been caused by incidents in the workplace. The applicant did not appear to have disclosed to Dr Nathani his previous history of psychological injury in 2014.
On 11 April 2023 Dr Nathani provided a further report confirming his previous opinion that the applicant’s psychological injury and incapacity is purely as a consequence of the events that took place whilst employed by the respondent and that his employment with the respondent is the main contributing factor to his psychological condition. Dr Nathani advised that whilst he was not in a position to gauge whether the applicant was asymptomatic at the time that he commenced employment with the respondent, having only been consulted after the subject injury had been sustained, based on the reports provided the applicant had been managing well without any medication or psychological treatment and hence was functioning well and not exhibiting symptoms. In the opinion of Dr Nathani, the events that took place whilst the applicant was employed by the respondent caused an aggravation, acceleration, exacerbation and deterioration of the applicant’s psychological condition.
Dr Girgis on 6 October 2022 responded to a questionnaire from QBE in which he advised that he was not aware of any psychological issues since 30 September 2019 and therefore could only conclude that the incident on 30 July 2022 was at least a major contributing cause to the applicant’s current condition.
Following 25 August 2022, the applicant continued to consult Dr Guirgis. On
9 September 2022 the doctor recorded depression – major with a history of anxious depressed mood, lack of interest and motivation, insomnia, mood fluctuations and frustration. On 24 September 2022 the doctor again noted depression – major with a similar history to that recorded on 9 September. Similar records were made on 4 October 2022 and
21 October 2022.
On 10 November 2022 the doctor again noted depression – major and recorded that the applicant was feeling depressed, upset, worried financially (claim declined), depressed mood, lack of interest and motivation, insomnia, mood fluctuations and frustrated. Similar observations were made by Dr Girgis on 6 December 2022 at which time the applicant was prescribed Avanza, 23 January 2023, 2 February 2023 at which time the doctor also noted that the applicant was going through court, 6 March 2023 and on 7 April 2023 when the applicant was again prescribed Avanza.
Dr Abhishek Nagesh, psychiatrist, provided a medico-legal report on behalf of the applicant dated 28 October 2022 having examined the applicant on the same day. The doctor, similar to Dr Nathani, diagnosed an adjustment disorder with depressed and anxious mood. The doctor, on the balance of probabilities, concluded that the applicant’s employment with the respondent was a substantial contributing factor to the injury noting that he could not identify any other factors outside of his employment which had given rise to the symptoms.
Dr Nagesh observed that the applicant was anxious, described his mood as depressed, that his affect was dysphoric and restricted.
Dr Nagesh did not agree with the opinion of Dr Ahmad noting in his opinion that Dr Ahmad had documented five of the applicant’s alleged symptoms which were depressed mood, insomnia, headaches, poor attention and concentration, anhedonia, lack of energy, and motivation, which in the opinion of Dr Nagesh were sufficient to meet the diagnosis of adjustment disorder with depressed and anxious mood as per DSM-5 criteria.
Dr Nagesh in a second report dated 6 April 2023 confirmed his previous opinion after having reviewed further material with which he had been provided. The doctor observed that in his opinion the applicant was asymptomatic when he commenced employment with the respondent as he would not have had the capacity to undertake the inherent requirements of his duties if he had not been.
Dr Ahmad in his report dated 26 September 2022 concluded that whilst the applicant did report some psychological distress following the work incidents and the perceived injustice he did not fulfill the full criteria for any mental health conditions, as per DSM-5 criteria at the time of examination.
Dr Ahmad noted on examination that the applicant appeared disinterested in the assessment process, that he described his mood as “sad”, that he was objectively dysphoric, that his effect was restricted and constricted and that he was unhappy with the respondent.
Dr Ahmad provided a second report dated 23 February 2023, after he had reviewed further documents provided to him, in which he confirmed his previous opinions in respect to diagnosis, causation, capacity and treatment.
The doctor advised that his rationale is that not only the symptoms reported needed to be considered but also other aspects like the applicant dropping his children to school sometimes, that he looks after the children as his wife was working part-time, that he was able to help his wife with household chores sometimes, that he was not interested in the assessment and could not remember his medications, that he could not recall the details of the events and was not keen to elaborate on them, the timeline of the events / alleged incidents, the reporting of symptoms to his GP following internal investigations, that he had provided multiple statements providing explanations as the case unfolded, that the allegations against the applicant were multiple and not just one incident and that there was a formal meeting organised on 8 August 2022 to provide the applicant with an opportunity to respond to the allegations made against him.
I do not accept the opinion of Dr Ahmad and prefer the opinions of Dr Nagesh and
Dr Nathani. Whilst Dr Ahmad does provide the opinion that the applicant does not meet the criteria for a diagnosable psychological condition it is a little unclear as to whether he does so based on his clinical examination of the applicant and his reported symptoms or the combination of the clinical examination, the reported symptoms and the other aspects referred to above. Given the credit issue in respect to the applicant it is necessary to carefully assess the applicant’s evidence to determine its honesty and reliability however whilst
Dr Ahmad lists a number of other factors which in his opinion need to be taken into consideration, he does not explain what inferences he is drawing from these other factors and how their consideration impacts on his opinion. In respect to the taking his children to school, looking after them as his wife works part-time and helping his wife with household stuff. There is little detail as to how often the applicant performs these tasks and what they in fact involve.
In any event Drs Nathani and Nagesh make the same diagnosis. Dr Nathani, in his capacity as the treating psychologist has had the opportunity to examine, interview and treat the applicant on a number of occasions where Dr Ahmad has only had the opportunity to examine the applicant on one occasion. The applicant’s report of symptoms to Drs Nathani and Girgis have been consistent overtime. Dr Girgis also has the advantage of having treated the applicant for a number of years in respect to his previous psychological injury. The applicant has advised Dr Nathani of the benefits, although limited, received from treatments such as practicing mindfulness and activities such as swimming which have assisted with his mood.
On the evidence the applicant was not suffering from any psychological condition of any significance at the time that he commenced employment with the respondent. Prior to attending on Dr Girgis in respect to the subject injury on 16 August 2022 there is no evidence that the applicant had required treatment or complained of any psychological issues post 30 September 2019. The applicant appears to have been functioning well prior to commencing employment with the respondent having been self-employed as an accountant.
I accept the opinions of Dr Nathani and Dr Nagesh that the applicant has a diagnosable psychological condition and therefore find that the applicant has sustained a psychological injury.

Main contributing factor

Section 4 of the 1987 Act which defines “injury” requires employment to be the “main contributing factor” to the contraction of the disease or the aggravation, acceleration, exacerbation or deterioration of the disease.
No other factors have been identified other than employment and I therefore accept the opinions of Dr Nathani and Dr Nagesh that employment is the “main contributing factor”.

Section 11A defence

Section 11A(1) of the 1987 Act states:
“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.”
The respondent bears the onus of proof in respect to establishing the defence under s 11A of the 1987 Act.
The respondent relies on the action taken by it, or on its behalf, in respect to discipline and dismissal. The respondent submits in summary that:
(a)    the applicant’s alleged conduct was sufficient to warrant intervention and investigation; and
(b)    although the applicant denies he meant or intended to harass the female complainants one would have significant doubts about the applicant’s credit and reliability, and would generally prefer the respondent’s witness evidence about the events that occurred;
(c)    the investigation and termination was reasonable within the context of the complaints;
(d)    while the applicant has, in later statements and documents, complained of matters unrelated to the disciplinary investigation, there is no support for this in the primary medical material and the applicant should not be accepted as a reliable witness on these matters, and
(e)    section 11A is not a provision requiring perfect managerial conduct, and the authorities make clear that a fact-finder applying it must balance the competing rights of both the employee and employer.
On 7 August 2002 the respondent in a letter titled “Notice to Attend Meeting” confirmed that the applicant was required to attend a formal meeting via Microsoft Teams on Monday,
8 August 2022 at 3pm with HR Business Partner, Vivian Assaad. The purpose of this meeting was to discuss and give the applicant an opportunity to respond to the following allegations which in the opinion of the respondent constituted inappropriate behaviour and sexual harassment:
Allegation 1 - That during a morning shift between Friday, 15 July and Monday, 18 July 2022, whilst the applicant and Aviation Screening Officer, Seyhan, were lining up to order coffee, the applicant asked Seyhan; “who makes the best coffee here?” to which she responded and explained that she had made good friends with the workers at the coffee shop during COVID-19 as this was a quiet period. In response to this explanation, the applicant looked at Seyhan whilst smiling, nudged her with his upper arm and said words to the effect “friends for bad times”. To confirm what the applicant had said, Seyhan asked the applicant to repeat himself. The applicant repeated the same words and nudged Seyhan in the same manner again whilst laughing. Subsequently, the applicant and Seyhan collected their coffees and the applicant invited Seyhan to take a seat to have their coffee together, which Seyhan declined. According to the respondent this was the first occasion that the applicant had spoken to Seyhan in the workplace.
Allegation 2 - on the same day as allegation 1, the applicant signed out of the respondent’s attendance system at the conclusion of his shift and walked past Seyhan who was waiting in the queue to sign out also, at which time he touched Seyhan’s elbow with his hand and said, “see you later”.
Allegation 3 - on Saturday, 30 July 2022, whilst Seyhan was in front of lane 1, the applicant approached her and said “Hello, what’s your name?”. Seyhan responded, “It’s Sey”. The applicant subsequently came closer to Seyhan and looked at her ID on her shoulder and asked, “Is that an Arabic name?” to which Seyhan said “No” and walked away.
Allegation 4 - on Thursday, 28 July 2022 and Saturday, 30 July 2022, the applicant was leering at and following a female Border Force officer around the workplace. Subsequently, on Saturday, 30 July 2022, the applicant asked this officer for her name four times and came closer to her and looked at her ID on her chest area.
The respondent conducted an investigation into the above allegations, and having done so, determined that on the balance of probabilities, all allegations had been substantiated and terminated the applicant’s employment on 22 August 2022.

Wholly or predominantly

For the defence under s 11A to be made out the psychological injury must have “wholly or predominantly” been caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline and or termination.
The respondent’s actions in respect to discipline and termination relate to the four allegations made of inappropriate behaviour which in the opinion of the respondent constituted sexual harassment.
The applicant alleges that he sustained a psychological injury due to being subjected to inappropriate termination of employment, verbal abuse from managers and colleagues as well as allegations that were unable to be sustained. The applicant in his statement refers to incidents and conduct beyond that in respect to which he was the subject of an investigation and on the basis of which his employment with the respondent was ultimately terminated. Much of the applicant’s evidence and that of the respondents witnesses in respect to these events is discussed above in respect to the issue of injury which for the sake of brevity I will not repeat here.
The applicant initially sought treatment for his psychological injury on 16 August 2022 when he attended on Dr Girgis. Dr Girgis recorded in the clinical not of the attendance “problem at his new job”. The doctor at that time does not elaborate on what the problem was. The applicant next attended on Dr Girgis on 18 August 2022 at which time the doctor took a history that on 30 July 2022 a female Border Force officer came towards him shouting, accusing him of harassing another female staff member and threatened to arrest him to which the applicant had responded that he had only asked her name. His manager came over and said that they would do a report and later that day he asked another manager what was going on. The applicant also advised the doctor that there had been other previous incidents where he had been treated badly.
Dr Girgis responded to a questionnaire from QBE on 6 October 2022 in which the doctor records that he was initially consulted by the applicant on 18 August 2022 in respect to the incident on 30 July 2022. The doctor was requested to advise what the applicant had reported as having occurred on 30 July 2022 to which the doctor recorded that the applicant had reported verbal abuse and threats from a Border Force officer whilst at work.
The questionnaire went on to ask the doctor whether he was aware of any other incidents having occurred either prior to or after 30 July 2022. The doctor reported that he was aware of multiple other incidents including the applicant being shouted at, being ignored, not getting assistance when logging in, being accused of wrongdoing by his managers and other what appears to be workers.
The applicant first attended on his treating psychologist Dr Nathani on 1 September 2022 at which time the applicant reported that there were issues at work – people shouting at him, reports of bad behaviour, bullying, Border Force officer shouting at him, another officer being aggressive towards him which he reported to his manager, felt that his manager did not care, avoiding him, not supporting , accusing him, making false allegations against him, someone complaining because he asked their name, manager aggressive and Border Force also aggressive.
Dr Nagesh in his report dated 28 October 2022 records that the applicant alleged that his manager was taking things personally, that he was being micromanaged by the manager, he was asked to provide the password for his personal email and when he refused his manager got angry and upset with him, that he did not receive any support from management, that one of the Border Force officers verbally abused him and shouted at him for no reason, that his manager ignored his complaint and no support was given, that he asked for a day off as he was unwell which was declined, that a Border Force officer on one occasion came towards him aggressively and accused him of sexual harassment and demanded that he be removed, that he was told to leave the premises, that he had received no clarification from the respondent, that he had requested his manager review the CCTV footage which had not been done, that in respect to the alleged sexual harassment his version of events had not been heard, that he was sacked without proper investigation and his employment was inappropriately terminated.
Dr Ahmad in his report dated 28 September 2022 records that the applicant reported that he did not agree with the allegations made against him, he reported that on the day before the incident on 30 July 2022 he had an incident where a Border Force officer had shouted at him and he didn’t understand why he was being shouted at, that he tried to discuss this incident with his supervisor Mr Rahman but he ignored him as he was talking to a female and therefore went on his break and when he returned Mr Rahman was angry, that he was taken to see another manager who was also unfriendly and angry with the applicant and that he was told that he could not wear his scarf and that he needed to stay in his area, that he asked for time off as he was feeling unwell which was declined and that on 30 July 2022 he was approached aggressively and shouted at by a lady.
Dr Nagesh is of the opinion that the verbal aggression of his manager, the accusations of sexual harassment, being inappropriately terminated without his version of events having been heard, being denied leave when he was unwell have all resulted in the development of the applicant’s alleged symptoms.
Dr Nathani is of the opinion that the “major factors” that contributed to the development of the psychological condition were the behaviour of the border security officers, his managers role, allegations which he denies, how things were handled at work and finally the termination of his employment.
Dr Girgis is of the opinion that the incident on 30 July 2022 was at least a major contributing cause for his current condition. The doctor was not of the opinion that the allegation of sexual harassment and the discipline around this is the whole or predominant cause of the psychological injury.
Dr Ahmad in his report of 28 September 2022 provided the opinion that the applicant’s psychological distress “could be because of these allegations [sexual harassment] and the discipline around this”. Dr Ahmad in his further report dated 23 February 2023, assuming that the applicant had suffered a psychological injury, stated “…I still believe that the injury/condition is ‘wholly or predominantly caused’ by the actions of the insured with regard to performance appraisal, discipline and / or dismissal from his employment.”

There is no evidence that the respondent reviewed the CCTV footage as part of its investigation in respect to the allegations made against the applicant.
In the respondent’s submission the incident on 30 July 2022 involving the female Border Force or Customs officer forms part of the respondent’s discipline as it is the making of allegations which formed the basis of the investigation and ultimately disciplining (terminating) of the applicant. I do not accept the respondent’s submission.
In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) Sackville AJA observed that 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.” However his Honour also observed that for s 11A(1) to apply “the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.”
The action taken by the Customs officer on 30 July 2022 in questioning the applicant and accusing him of sexual harassment was not action taken by or on behalf of the respondent. The Customs officer was acting on her own initiative and no formal complaint appears to have been made to the respondent prior to her approaching the applicant. Furthermore, the applicant was not given notice, the applicant simply had the allegations put to him in an ad hoc fashion at the same time as being accused of sexual harassment. This was done prior to any formal investigation being commenced.
I do not accept and therefore do not find that the applicant’s psychological injury was “wholly or predominantly” caused by reasonable action taken or propose to be taken by or on behalf of the respondent in respect to discipline and / or termination.
On 18 August 2022 Dr Girgis takes the first history of any detail from the applicant and records that the applicant complained about the incident on 30 July 2022 when he was questioned by and accused of sexual harassment by a Customs or Border Force officer. As noted above I do not accept that this forms part of the disciplining of the applicant. Whilst this event appears to have been the applicant’s main concern at the time, Dr Girgis noted on 18 August that there had been other incidents. These other incident’s, Dr Girgis in his response to the QBE questionnaire, reported as including the applicant being shouted at, being ignored, not getting assistance when logging in, being accused of wrongdoing by his managers.
Whilst there are inconsistencies in the in the evidence between the applicant’s version of events and that of the respondents witnesses, in particular in respect to the applicant being shouted at or his managers acting in an aggressive manner towards him the evidence does support that the applicant did feel ignored when his conversation with Mr Rahman was interrupted by Belinda, that he was approached and questioned by a Boarder Force officer as to his presence in a particular area, that there were issues around the applicant logging in and that Mr Rahman had effectively withdrawn his assistance after the applicant questioned what he was being asked to do, that he was accused of wrong doing not just in respect to the allegations of sexual harassment but also the wearing of a scarf and his presence in particular areas, that his manager (Mr Rahman) had at the very least been unhappy with the applicant at times.
Dr Nathani similarly records a broad range of incidents of which the applicant complained. Whilst Dr Ahmad ultimately comes to the opinion that the injury was “wholly or predominantly” caused by the actions of the insured in respect to performance appraisal, discipline and / or dismissal he does not explain how he reached that opinion given the history that he took of multiple incidents and the minimal history which he recorded in respect to the disciplinary process and the termination of employment.

Reasonable action

For the defence in s 11A(1) to apply the psychological injury has to be 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 or in the case discipline and / or dismissal.
As noted above the investigation, disciplinary action and ultimately the applicant’s dismissal from employment related to four allegations of inappropriate behaviour which in the respondent’s opinion constituted sexual harassment.
The applicant does not appear to dispute that an allegation of inappropriate behaviour or sexual harassment should be investigated. The applicant does however dispute that his behaviour was inappropriate as well as the allegation of sexual harassment.
In respect to allegation 1, the crux of the allegation would appear to be the applicant’s smiling at Seyhan, the nudging of Seyhan by the applicant with his upper arm, the applicant saying “friends for bad times” and possibly the applicant’s invitation to have their coffee together.
On 8 August 2022 the applicant attended a meeting with Ms Assaad, the respondent’s HR Business Partner, with the express purpose of discussing the allegations and to provide the applicant with the opportunity to respond. Whilst denying that any physical contact took place the applicant confirmed and expanded on the conversation stating that he saw Seyhan, prior to the conversation in question, in the screening area and had seen her a couple of times going through the “sec check” but had not spoken to her.
He explained that when he was going to get his coffee, he saw her, she was waiting there, he said “Hello” and Seyhan said “Hello”. He asked how she was and Seyhan asked him the same as well as where he had previously worked to which he responded. Seyhan then asked what the applicant’s role was with the respondent and he answered. Seyhan then asked where he was from, and the applicant asked Seyhan what her role was to which she responded. The applicant then asked Seyhan her name. As they were waiting the applicant then asked Seyhan which shop has the best coffee, she said there are a few, but she had made good friends with the workers at the coffee shop that they were at during COVID because no other shop was open. It appears that the applicant then made the comment about “friends for bad times”.
Seyhan’s coffee came first, the applicant’s coffee came after. Seyhan took her coffee and was walking towards the seating area, and the applicant was walking behind her. The applicant advised that in a normal situation, you would say bye or sit together. He was thinking what should they do, so he asked Seyhan are you going this way and are you going to sit there? Seyhan said no stating that she needed to make a call. The applicant said “ok bye”.
The applicant advised that it was friendly conversation and that he just perceived Seyhan as a colleague and there was no intention of a sexual nature. Seyhan was saying they were the only shop open during COVID-19, that she meant they were friends from the bad times, from COVID-19.
The applicant explained that he didn’t see this as inappropriate, that there was no inappropriate intention at all and that he was surprised that it had been raised. He could not comprehend how this could be perceived as harassment.
There is no written statement in evidence from Seyhan. There is in evidence an Event Report which was completed and signed by Seyhan on 2 August 2022 which is in reference to “inappropriate behaviour”. In the report Seyhan records that the applicant approached her whilst she was in front of the coffee shop and that he started a conversation with her and touched her arm twice. Seyhan observed in respect to the applicant’s conduct at this point that he was thinking that he was “friendly and cool”.
The only part of the conversation which is referred to by Seyhan in the Event Report is the applicant asking her whether she wanted to have their coffee break together. There is no reference to the “friends for bad times” comment. The report contains no reference to the context in which the applicant touched Seyhan’s arm. Whilst Seyhan refers to the applicant touching her arm twice she makes the observation that the applicant thought he was being “friendly and cool”. Seyhan does not refer to there being any sexual connotation.
In respect to allegation 2 – which occurred on the same day as allegation 1 the crux of the allegation appears to be the touching of Seyhan’s elbow by the applicant.
The applicant at the meeting with Ms Assaad on 8 August 2022 advised that he could not recall seeing the applicant, but he may have. He advised that he says “bye” whenever he is leaving. He appears to indicate that he could have bumped her on his way out, but he wouldn’t have intentionally grabbed her.
Seyhan reports this incident in the same incident report that she reported allegation 1. Seyhan records that at the end of her shift she was in front of the administration desk in the sterile area when the applicant touched her arm again in an inappropriate way and walked off. The next day she spoke to “GA” Rui Yan Xie about the applicant mentioning that he is “very annoying and kept touching her inappropriately”. There is no statement in evidence from Rui Yan Xie.
Allegation 3 – the applicant at the meeting with Ms Assaad on 8 August 2022 advised when asked if he came closer to check Seyhan’s ID, that he did not approach her and that he doesn’t recall asking her name, looking at her ID or asking if her name was Arabic. He concedes that he may have asked her name or checked her ID, but he can’t remember and he never thought that asking someone’s name is offensive observing that knowing someone’s name is helpful, as they work together.
In response to being asked whether he believed that he had come uncomfortably close to Seyhan, the applicant responded that he didn’t think that he would go very close to Seyhan without a reason.
Seyhan reports this incident in the same incident report that she reported allegations 1 and 2 where she records that that following the incident referred to in allegation 2 she had ignored the applicant until 30 July 2022 when following her return from her break in front of Lane 1 the applicant approached her and asked her name. Seyhan tried to ignore him, and the applicant came closer and checked her ID card and asked if it was an Arabic name. Seyhan ignored him and walked off.
Seyhan states at the end of the Event Report that she wanted to be left alone to do her job and that she wanted the applicant to stay away from her.
It is the evidence of Mr Ozdemir, a Duty Shift Manager with the respondent, in a statement made 22 September 2022 that prior to the specific incident on 30 July 2022 one of their staff, a female security guard, made a verbal complaint that she felt a little uncomfortable around the applicant, as he was coming on to her, asking her to have coffee and even touching her shoulder inappropriately. The female guard did not like this and wanted to be left alone. He received this complaint in writing and provided this to Simar along with his own report later that week.
Allegation 4 - the applicant at the meeting with Ms Assaad on 8 August 2022 responded when asked if he had been staring at or following the Border Force officer “Absolutely not, not possible. How can I follow if I’m in a particular area, maybe I’m walking around doing my duties, but following a particular person didn’t happen and it shouldn’t happen. Why would I do that. it’s a very close area, border force and our area is a very close area”.
The applicant was asked when he asked for the Border Force officers name to which he responded that he didn’t ask her name the first time he saw her on 28 July, but on Saturday, 30 July. He was working in the corner where the duty-free desk is, and the Border Force officer was walking past that area, she looked at the applicant and the applicant looked at her and said “Hello, how are you today?” The Border Force officer as she was walking said “I’m very good thank you, how are you today?” The applicant responded “I’m good thank you, what’s your name?” As the Border Force officer was walking away he did not hear what her name was. It is the applicant’s history that the exchange occurred whilst the Border Force officer was walking and that he did not move at all from his position.
The applicant advised that he was subsequently asked by one of the team members to go to the middle area in a position swap. He was working there when he saw the same Border Force Officer was also there. She was walking past from one desk to another continuously. From the notes of the applicant’s response, it seems that the applicant’s history is that the Border Force officer, in her travels, pasted by where he was standing, and as she was going by he asked if he could look at her name badge because he had not heard what she had said, to which she responded “Please don’t.”
The applicant advised that people look at his name badge to see what his name is and that he has asked many Border Force officers their names both male and female, young and old and many of them had asked his name. The applicant reported that she looked familiar, she was looking and interacting, she was passing and that’s the reason he asked. The applicant denied that there was any following or leering. He advised that he had no intention, that it was just a friendly conversation.
The applicant observed that knowing a person’s name is helpful in the workplace as he might need help, or they might need to refer someone. As the name badge is visible at all times, he was surprised that asking a person’s name had caused so much trouble. The applicant reported that he has no idea where the idea came from that he was following the Border Force officer or leering. The applicant advised that when he is in the middle area, he is always interacting with his team member on the other side near the duty-free desk and speculated that maybe the Border Force officer thought that he was trying to look at her and as part of his job he had been instructed to be vigilant.
On 30 July 2022 the applicant completed an Event Report in which he simply states “I have been wrongly accused for asking a girls name. I didn’t mean anything what she is saying. I only ask her once. She just wants trouble.”
There is in evidence no statement from the Border Force officer, no record of complaint, no record of interview and no other document in respect to the complaint made by the Border Force officer.
On 30 July 2022 Mr Ozdemir at 10.34pm emailed Simarpreet Singh advising that at approximately 7.10pm he had been informed by Ms Maure about the incident involving the female Customs officer at which time the applicant, when being questioned as to why he had asked the name of a Customs officer had responded that he had only asked once which is consistent with the applicant’s response at the meeting with Ms Assaad on 8 August 2022. Mr Ozdemir records that he went to Customs and spoke to Belinda and John who were concerned about the applicant’s actions stalking their female officer, asking her name a number of times and following her around. Belinda reported that their officer had been moved from station to station to avoid contact with the applicant. The email records that Customs were going to make a formal written complaint however if this complaint was made it is not in evidence.
It is the statement evidence of Mr Ozdemir that on 30 July 2022 after being advised by Sandra of the incident where the applicant had been questioned by Belinda he went to Customs and spoke to their Duty Manager, Belinda, as well as John (one level down from Belinda) and another female Customs officer. They advised that they were very concerned about the presence of the applicant within the Customs area as well as that he had been following the female customs officer who was present at the meeting from one end of the airport to the other and apparently this had occurred on both 27 and 28 July. The Customs officer felt that the applicant was stalking her, and she did not want to talk to him. She also felt that he may follow her after work, and she was becoming a little / scarred / intimidated by the applicant. They had relocated the Customs officer from the western end to the eastern end of the airport and even though she had been moved the applicant had still followed her.
After Mr Ozdemir had spoken to Customs the applicant approached him and asked why he was being sent home. The applicant advised that he was a “friendly guy” and he just wanted to know her name. Mr Ozdemir states that he provided a statement/report to those in HR who subsequently conducted the investigation.
For the following reasons I do not accept that the respondent actions in respect to discipline and / or dismissal were “reasonable”.
The respondent’s investigation, disciplinary action and ultimately the termination of the applicant’s employment related to four allegation of inappropriate behaviour which in the respondent’s opinion constituted sexual harassment. The respondent’s letter to the applicant dated 7 August 2022 and titled “Notice to Attend Meeting” advised that the alleged misconduct was considered serious and if substantiated could result in disciplinary action being taken against the applicant, up to and including the termination of his employment. The respondent also indicated that it would be conducting a “thorough investigation”.
It is not disputed by the applicant that an allegation of sexual harassment should be investigated.
In respect to allegation 1 the complaint is in essence in respect to the nudging of Seyhan’s with the applicant’s upper arm on two occasions, the applicant’s comment “friends for bad times” whilst smiling and laughing and possibly the applicant’s invitation to Seyhan to have coffee together. Whilst the applicant denies that any physical contact occurred, he does not deny that the conversation took place. The applicant denies that there was any intention of a sexual nature and that the comment “friends for bad times” related to the COVID-19 period when Seyhan had stated that she had made friends with the people at the coffee shop.
The Event Report completed by Seyhan records that the applicant approached her whilst she was in front of the coffee shop and started a conversation. Apart from the applicant inviting her to have their coffee together Seyhan reports no other details of the conversation. If Seyhan was offended or concerned by the conversation one would have expected that she would have reported that part of the conversation which was of concern to her. Whilst details of the conversation must have been obtained from Seyhan at some point in time there is no evidence that Seyhan was offended or concerned about particular aspects of the conversation other than to say in respect to the entire interaction including the nudging of her by the applicant that the applicant thought he was “friendly and cool”. Seyhan does not refer in respect to the incident to there being any sexual connotation.
In respect to allegation 2 which occurred on the same day as allegation 1 the applicant advised that he does not remember the incident but denies intentionally touching Seyhan’s elbow. In respect to the incident Seyhan reported in her Event Report that the applicant was “very annoying and kept touching her inappropriately”. In respect to allegation 3 which took place on 30 July 2023 the applicant concedes that he may have asked Seyhan her name or checked her ID, but he doesn’t remember. In her Event Report Seyhan reports that she ignored the applicant and walked off.
Allegations 1, 2 and 3 do not individually or together contain clear allegations of any sexually suggestive conduct by the applicant. The candour of Seyhan’s Event Report in respect to the incident’s is that she found the applicant “annoying”. Seyhan obviously did not appreciate the physical contact and clearly wished to be left alone by the applicant.

Whilst it is the evidence of Mr Ozdemir that prior to the incident on 30 July 2022 one of the respondent’s staff, which I assume to be Seyhan, had made a complaint that she felt a little uncomfortable around the applicant, as he was coming on to her, asking her to have coffee and even touching her shoulder, no action appears to have been taken in respect to the complaint prior to 30 July 2022. It is difficult to understand, if such a serious complaint as sexual harassment had been made, why it was not immediately escalated and the applicant spoken to in respect to his conduct, but no such action appears to have been taken. It is the evidence of Mr Ozdemir that he did receive the complaint in writing which I assume is Seyhan’s Event Report which was completed on 2 August 2022 which he provided to Simar. As noted above Seyhan in the Event Report refers to the applicant being “annoying”.
It is difficult to see on the evidence available how the respondent could come to the conclusion that allegations 1, 2 and 3 constituted sexual harassment.
In respect to allegation 4 the applicant denies that he followed the Border Force officer advising in effect that they were working in the same area and that he was moved within that area, that he asked her name once and that as he did not hear her response, he subsequently asked to look at her name tag.
There is no evidence before me from the Border Force officer even though it appears that Customs advised that they would be making a formal complaint.
The description of the offending conduct contained in allegation 4 is very brief and imprecise. That the applicant was “leering at” and “following” the female Border Force officer. Whilst such conduct would clearly be unacceptable, we are not told in the allegation what was constituted by “leering” and in the circumstances in which it occurred. The allegation also does not advise as to when and where the applicant is alleged to have followed the Border Force officer except to provide dates. The lack of detail raises concerns as to whether the applicant was given a reasonable opportunity to respond to the allegation made. Given the serious nature of the allegations made against him it would have been reasonable for the allegations to be clearly and completely put to the applicant which has not occurred.
It is Mr Ozdemir’s evidence that when he spoke to Customs following the applicant being questioned by Belinda he was advised that the applicant had followed the Border Force officer from one end of the airport to the other on both the 27^th and 28^th of July. If this was the subject of the allegation, such a serious and concerning allegation should have been put squarely to the applicant so that he was given an opportunity to respond.
The respondent’s letter to the applicant titled “Outcome” dated 22 August 2022 repeated the four allegations made against the applicant and recorded the applicant’s responses as given on 8 August 2022. In the letter the respondent advised the applicant that following a balanced investigation into the allegations the respondent had made a determination in relation to his conduct based on the objective evidence, including the complaint from Border Force, witness statements and the applicant’s responses to the allegations.
The respondent went onto note that whilst the applicant denied touching Seyhan and making a sexually suggestive comment, as well as leering and following the Border Force Officer, they had serious concerns as the complaints, which are “similar in nature” were received from two different employees in the workplace.
The similarities in respect to the complaints are however limited. The applicant did ask both for their names and did look at, or request to look at their ID’s. The applicant also attempted to talk to both however this does not form part of the description of the complaint in allegation 4. However, allegations 1, 2 and 3 contain no reference to the serious allegations contained in allegation 4 of the applicant “leering at” and “following” the female worker.
The letter goes on to inform the applicant that in addition, the respondent had received a further report whereby on 7 July 2022 he had inappropriately probed into his trainer's personal life by asking her several times the reason she does not have children. This allegation was not put to the applicant, and it is not disclosed when this complaint was made and if made prior to 30 July 2022 why no action had been taken in respect to it.
The respondent advised the applicant that based on “all this information”, it had determined that on the balance of probabilities, all allegations had been substantiated and that his behaviour demonstrated a pattern of inappropriate behaviour which constitutes sexual harassment. The respondent considered that the applicant’s actions constituted serious misconduct warranting summary dismissal and the applicant’s employment was terminated effective 22 August 2022.
Allegations of inappropriate behaviour which constitute sexual harassment are extremely serious matters which demand diligent investigation. The evidence does not support that such an investigation was undertaken.
There is no statement or other evidence from Ms Assaad as to what investigations were undertaken. The only significant evidence in respect to the allegations made against the applicant which predates the termination of the applicant’s employment on 22 August 2022 other than the applicants Event Report and the notes relating to the applicant’s meeting with Ms Assaad on 8 August 2022 is the Event Report completed by Seyhan and the email by
Mr Ozdemir to Simarpreet Singh of 30 July 2022 which possibly constituted the statement/reports which Mr Ozdemir refers to providing to those conducting the investigation. There is no record of interview of statement from Seyhan. There is no statement, record of interview or other documentary evidence from the Border Force officer the subject of allegation 4. Whilst Customs threatened to make a formal complaint in respect to the applicant’s alleged conduct which is the subject of allegation 4 it is not confirmed that such a formal complaint was made and if it was it has not been put into evidence.
I note that the respondent’s solicitors did attempt to obtain the evidence gathered during the investigation undertaken by the respondent. AB Investigations who were retained by the respondent solicitors record, in their report dated 6 March 2023, that they made contact with the respondents Human Resources Business Partner, Sylvana Tarraf, who confirmed that all evidence gathered had been provided to AB Investigations within their initial inquiries in September 2022 and that no further information could be provided. Ms Tarraf also advised AB Investigations that access to the Sydney Airport CCTV would not be granted and that the respondent had not gained this information as they were not privy to this evidence. There is some uncertainty from this as to whether the respondent had attempted to access the CCTV footage and that access had been refused or whether they did not have access to it because they simply had not bothered to attempt to obtain it. In any event the applicant was not advised as to whether the CCTV footage had been reviewed or otherwise and if it had not been no explanation had been provided to him as to why it had not been.
I find that on the balance of probabilities that the actions taken by or proposed to be taken by or on behalf of the respondent in respect to discipline and/or dismissal were not reasonable.
The respondent bears the onus of proof in respect to proving a defence under s 11A(1). The respondent has not discharged its onus.

Incapacity

The applicant seeks weekly benefits compensation pursuant to s 37 of the 1987 Act from
24 October 2022 and ongoing.
The applicant’s PIAWE has been agreed by the parties at $607.62.
The respondent submits that the opinion of Dr Ahmad that the applicant has full capacity for work should be accepted. The respondent also submits that the evidence supports that the applicant has worked since sustaining the subject injury.
Dr Nagesh in his report dated 28 October 2022 found the applicant to have no capacity for any form of employment. Dr Girgis in his response to the GIO questionnaire dated
6 October 2022 also found that the applicant was not fit for any work duties. Dr Girgis has issued certificates of capacity certifying the applicant with no capacity for work between
24 September 2022 and 6 May 2023 and therefore the certificates of capacity were current at the time of the filing of the ARD in these proceedings on 24 April 2023.
The applicant’s bank statements, post injury, record a number of deposits which on their face relate to accountancy work performed by the applicant. These deposits are as follows:
(a)    8 August 2022 – “Tax return”;
(b)    11 August 2022 – “Udita tax payment”;
(c)    11 August 2022 – “Tax return”;
(d)    16 August 2022 – “Russell tax fee”;
(e)    19 August 2022 – “Tax payment fees”;
(f)    29 August 2022 - "Accounts”;
(g)    30 August 2022 - "Tax Agents payment”;
(h)    14 September 2022 - "Tax”;
(i)    15 September 2022 - "Tax return”;
(j)    21 September 2022 - "Tax invoice paid ….”;
(k)    28 September 2022 – “tax service”;
(l)    6 October 2022 - "Q1 2022-23 Accounting Services Fee”;
(m)     8 October 2022 - "Accountant fee”;
(n)    13 October 2022 - "Paid to Accountant for 2022 Tax rtn”;
(o)    15 November 2022 - "sheeba and Neethu tax return fee”;
(p)    24 November 2022 – “Loan document fee tax income...”;
(q)    28 November 2022 – “Loan document payment for Westpac …”;
(r)    7 December 2022 - “Bill tax”;
(s)    13 December 2022 – “accountant fee for Q.2 – 2022-23”;
(t)    31 January 2023 – “Company registration fee”;
(u)    31 January 2023 – lodging trf 20-21 & 21-22”;
(v)    20 March 2023 – “Tax agency fee”, and
(w)   7 April 2023 – “CREDIT TO ACCOUNT Q3 2022-23 payment”
It is the applicant’s evidence that payments in respect to tax related income relates to work that he carried out in early 2022 and in the year prior.
There are tax invoices in evidence for each of the above deposits. Where the deposits refer to work performed in 2022-23 the applicant has provided evidence that the entry in the account is incorrect and that it related to work done prior to 30 July 2022 and that the tax invoices in question were being paid in instalments. The tax invoices in respect to the accounts relating to those deposits are in evidence.
I accept that the applicant has not worked since sustaining injury. Whilst there is an issue in respect to the applicant’s credit and his evidence needs to be carefully assessed for its honesty and reliability the applicant’s statement evidence is supported by the tax invoices.
I prefer the opinions of Drs Nagesh and Girgis that the applicant has no capacity for work due to his psychological injury to the opinion of Dr Ahmad. As previously discussed, I do not accept the opinion of Dr Ahmad that the applicant does not suffer from a diagnosable condition, also Dr Girgis has had the opportunity to repeatedly examine and interview the applicant in respect to his condition.
I therefore find that the applicant has been totally incapacitated for work from
24 October 2022 to date and continuing.

SUMMARY

I find that:
(a)    the applicant has sustained a psychological injury arising out of or in the course of his employment on the deemed date of 30 July 2022;
(b)    the applicant’s employment was the main contributing factor to the psychological injury;
(c)    the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline and / or dismissal, and
(d)    the applicant has had no current work capacity from 24 October 2022 to date and has no current work capacity.
The Commission orders:
(a) The respondent is to pay the applicant the following:
(i)$502.48 per week from 22 October 2022 to 31 March 2023 pursuant to s 37 of the 1987 Act, and
(ii)$523.28 per week from 1 April 2023 to date and continuing pursuant to s 37 of the 1987 Act.

[2023] NSWPIC 468

13 September 2023