BTY v Michael Hill Jeweller (Australia) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BTY v Michael Hill Jeweller (Australia) Pty Ltd [2024] NSWPIC 126
APPLICANT:	BTY
RESPONDENT:	Michael Hill Jeweller (Australia) Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	14 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses in respect of psychological injury; respondent relied on a defence pursuant to section 11A; applicant was involved in a verbal and physical altercation with a colleague at the back of the store; CCTV footage of the altercation; applicant was issued with a first and final warning after an investigation; consideration of Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Kooragang Cement Pty Ltd v Bates, Fisher v Nonconformist Pty Ltd; Mason v Demasi, Hamad v Q Catering Limited, Irwin v Director-General of Education, and Northern NSW Local Health Network v Heggie; Held – applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline; respondent’s action with respect to discipline was reasonable; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, BTY was employed by the respondent, Michael Hill Jeweller (Australia) Pty Ltd (Michael Hill) as a sales professional.
The applicant has sustained a psychological injury, deemed to have happened on 6 May 2023.
The applicant completed a Worker’s Injury Claim Form (the claim form) on 18 May 2023. The date of injury was claimed as 21 April 2023. The claim form stated, “full incident report attached”. The incident report was dated 30 April 2023. It is discussed below.
On 7 August 2023, the respondent’s insurer, EML, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The date of injury was stated to be 21 April 2023.
EML disputed that the applicant was entitled to compensation because her psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal, pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). EML disputed that the applicant was entitled to weekly payments of compensation or payment for medical or related treatment.
By letter dated 15 August 2023, the applicant’s solicitors served on Insurance & Care NSW (icare) a report of independent medical examiner Dr Abdal Khan, dated 14 August 2023, and requested a review of EML’s decision.
On 29 August 2023, icare issued the applicant with a review notice, advising that EML’s decision was maintained.
By letter dated 11 September 2023, the applicant’s solicitors again requested a review of the decision to dispute liability, and disputed EML’s calculation of BTY’s pre-injury average weekly earnings (PIAWE). They advised that the applicant sought a general order for future medical expenses, pursuant to s 60 of the 1987 Act.
On 21 September 2023, EML issued the applicant with a review notice, with respect to a work capacity decision made on 9 June 2023 regarding her PIAWE. EML advised that the decision that the applicant’s PIAWE were $646.42 per week was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 12 September 2023.
The applicant claimed to have sustained a primary psychological injury arising out of or in the course of her employment, the deemed date of which was 6 May 2023, the first date of incapacity.
The applicant claimed weekly benefits, pursuant to ss 36 and 37 of the 1987 Act, from 6 May 2023 to date and continuing. Her PIAWE were claimed to be $738.96 per week. She also claimed future medical expenses of $7,800.
The respondent lodged its Reply on 4 October 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant’s accepted psychological injury was wholly or predominantly caused by the respondent’s reasonable action taken with respect to discipline;
(b)    the applicant’s capacity for work, and
(c)    the reasonable necessity of medical treatment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 16 October 2023. Mr Walker and Mr Covic appeared for the applicant, who was present. Ms Mangan appeared for the respondent, instructed by Mr Pefani from EML.
The Application was amended by consent to claim a general order for s 60 expenses.
The matter was listed for conciliation/arbitration hearing, in person, on 12 December 2023. Mr Tanner of counsel, instructed by Mr Covic, appeared for the applicant, who attended with her daughter. Mr Grimes of counsel, instructed by Ms Magan, appeared for the respondent. Mr Rendon of EML also attended.
I was advised that the parties agreed that the applicant’s PIAWE were in accordance with the wages schedule filed by the respondent.
Mr Tanner advised that he would not be referring to the issue of the alleged breach of confidentiality of the process of the investigation and the termination of the applicant’s employment, as the date of injury was 6 May 2023, so what happened after that date was irrelevant.
Due to the time taken in conciliation, it was not possible to complete the hearing of the matter on 12 December 2023.
Mr Grimes made oral submissions on behalf of the respondent, and Mr Tanner on behalf of the applicant. The respondent was directed to provide any submissions in reply in writing once the transcript became available.
The respondent’s submissions in reply are dated 17 January 2024.
By letter to the Personal Injury Commission (Commission) dated 22 January 2024, the applicant’s solicitors submitted that paragraphs 10 to 17 of the respondent’s submissions constituted fresh argument, were not in reply to the applicant’s submissions, and should be disregarded.
By letter to the Commission dated 30 January 2024, the respondent advised that it pressed the submissions at paragraphs 10 to 17.
I caused an email to be sent to the parties on 30 January 2024, requesting that they advise whether they required a further conference in order to address the issue of the respondent’s submissions.
By email on 31 January 2024, the applicant’s solicitors requested a further conference.
By email on 2 February 2024, the respondent’s solicitors advised their view that a further hearing was not necessary but did not oppose the matter being listed for further conference “if the Commission wishes”.
The matter was listed for further conference on 9 February 2024. Mr Walker and Mr Covic appeared for the applicant and Ms Magan appeared for the respondent. Mr Pefani also attended.
The applicant raised for the first time a submission that the matters raised in paragraphs 10 to 17 of the respondent’s submissions in reply were not referred to in the dispute notice or review notice, and therefore, the respondent was not entitled to raise them.
As the respondent was not in a position to meet this submission, the matter was listed for further conference on 1 March 2024, to allow counsel to appear.
The matter was listed for further conference on 1 March 2024. Mr Tanner appeared for the applicant, instructed by Mr Walker and Mr Covic. Mr Grimes, instructed by Ms Magan, appeared for the respondent. The applicant and Mr Pefani attended.
For reasons given at the conference, and which were recorded, paragraphs 10 to 17 of the respondent’s submissions in reply were excised.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 10 October 2023 and attached documents, filed by the applicant;
(d)    Application to Admit Late Documents dated 7 December 2023 and attached documents, filed by the applicant, and
(e)    Application to Admit Late Documents dated 7 December 2023 and attached documents (including wages schedule filed separately) filed by the respondent.

Oral evidence

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

FINDINGS AND REASONS

Evidence of applicant, BTY

Incident report

The applicant’s “full incident report” is dated 30 April 2023. It is addressed to “HR and Mr Usman Ghani”. I have not reproduced the document in full but have summarised its contents.
The applicant’s evidence about matters after the alleged breach of confidentiality is not relevant and I have not referred to it.
She was reporting an incident between herself and Ani (Aklima) Hossain on 21 April 2023. This was the second incident between them.
The first incident was on 18 March 2023, “also starting from Ani interrupting my customer presentation…” That incident also escalated to issues regarding why the roster was working around Ani on a regular basis. BTY would write a full report of this incident if required.
On 21 April 2023, she started work at 11.30am. At about 12.00pm to 1.00pm, a young couple walked in. Maria (Demasi) was at the registers and Ani was at the back. She began to size the young lady’s finger. Ani interrupted to say they were her customers. She asked the lady if Ani had served them before, so she could transfer them smoothly. The lady said, “No, but maybe my boyfriend did?”
She whispered to Ani, “Sorry, because they didn’t ask for you”, gave her the customers, and walked away to where Maria was at the registers. Maria informed her that the guy came in earlier and was going to bring his girlfriend in later. She was not aware he was Ani’s customer, as she was not yet at work when Ani served him. What Ani did was still against company policy.
She waited until the customers left and approached Ani. She was trying to explain that she was eventually going to transfer the customer, but Ani just told her “I don’t want to listen to what you have to say, I don’t want to talk to you ever again, go talk to Nashim” (Safin).
She said, “Ani, even though we don’t talk, we should still work professionally and follow the company rules and policy”. Ani responded angrily, “I don’t care about the rules, I don’t care about the company policy, go away I don’t want to talk to you”, went to the back and sat on the manager’s chair.
She walked to the entry of the back, stood near the bin to keep a far distance, and again tried to tell Ani that they must work professionally and peacefully, and there were company rules they needed to follow. Ani started yelling loudly with her hand outstretched and her finger pointing, and repeatedly yelled “get out, get out now, just leaveee!” [sic].
She was provoked and walked to Ani and told her, “You have no right to scream at me or tell me to get out, you are not the boss and you don’t own this office and I also have the right to stay here.”
Ani kept pointing her finger while continuing to yell and touch her right arm. She reacted by pushing it away in self-defence with her right arm. Ani put both hands in front of her face and said, “You hurt me, you hit me”, while pointing up and saying, “There’s CCTV” (closed circuit television).
She froze with the exaggerated reaction and said, “I didn’t even f…hit you, I didn’t even f…hurt you.” She swore out of anger and disbelief but did not call Ani “a f…bitch like she claims I did.”
She said Ani was the one that had been verbally abusing her from the start. After all the arguments, Ani stood up, passed really close by her, brushed the side of her body, and said, “don’t push me.” She was again shocked, and said, “What the f…, I didn’t even touch you.”
She called Nashim and reported the incident and that Ani had accused her. Maria told her Ani said she had hurt her, hit her, sworn at her, and she was very scared of her.
Ani’s “dishonesties” really affected her from that day to now. Ani was the aggressor from the start. The CCTV would prove that.
Nashim came to the store with his son and father-in-law just before 2.00pm and spoke to Maria but did not speak to her or Ani about the incident. Nashim sent her home an hour early at about 2.30pm.
She waited for Nashim to act but did not want to disturb him during Eid that weekend. On Tuesday she messaged him that she wanted to file an incident report and for the incident to be taken seriously, because she was being falsely accused and Ani telling a colleague had emotionally stressed her.
She wanted to talk to Usman and HR (Human Resources) and requested that the CCTV be reviewed with her and Ani present to clear her name.
Nashim told her he was off, but tomorrow he would talk to her and Ani individually and then organise for Usman and HR to talk to them. She requested that he talk to them both together and he said OK. She said she was off tomorrow but could definitely come in. He said he would let her know the time.
The next day she had not heard from Nashim at noon, so she messaged to ask what time he wanted her to come in. He called her. She explained the incident again and asked to speak to Usman and HR and get the CCTV reviewed with her and Ani present.
Nashim said he was not sure there was such a thing as reporting an incident regarding this kind of issue. He would ask HR and also ask about her CCTV request. He said Alisha (Murphy) from HR was in Brisbane, so to give him a few days to sort everything out.
In the meantime, she requested Nashim not to roster her and Ani on their own, because the two of them usually closed the store. Ani was pregnant and she worried that, if anything happened to the baby, Ani would blame her. Ani had given her anxiety. Nashim said OK. She trusted that Nashim was going to be fair and that was why she waited for him to get back to her.
On Friday, Nashim called at 9.15am to ask if Usman or Jess (Jessica Marsden), the State Manager, had called her yesterday. She said they had not. Nashim told her she did not have to work that day, Saturday, or Sunday, and she would be paid.
Nashim also said she was invited to a formal meeting with Usman and Jess on 1 May 2023, at the Centre Management meeting room, and he was required to read her Usman’s letter.
She asked if Ani would also be present, and Nashim said Usman had talked to her on Thursday. She was confused as to why she was not asked to talk to him on the same day, because she had asked several times and was available any time.
Nashim read her the letter and she asked him to email it. She asked if he had seen the CCTV. He said he should not be telling her this, but Michael Hill security had reviewed it. He had not seen it, because it was out of his hands, as he was no longer involved in the investigation.
She read the email thoroughly. She was beyond shocked that Ani had filed an incident report with Usman when she was told there was no such thing. It was worse that she was being falsely accused and it seemed like she was suspended indefinitely.
She messaged Nashim, as she was quite confused and emotionally distressed. Ani had changed her untrue original story from “push” to “elbowing” and “hit” to “striking twice”, and “swearing” to “swearing at her repeatedly and directly calling her a f…bitch”, which was all untrue.
She told Nashim that, based on the email, she did not think the CCTV had been reviewed, and he said that either way they would watch it. She said he had told her earlier that security had already reviewed it before giving her the letter. She wanted to request that it be reviewed with her present. TO DATE, I STILL HAVE NOT BEEN GIVEN THE OPPORTUNITY TO REVIEW THE CCTV. (Capitalisation in original).
She called Nashim, crying and begging to speak to Usman or Jess that day, as she could not emotionally wait until Monday. The whole weekend would be very stressful for her.
Nashim said Monday was the earliest possible meeting. She asked how Ani had got to speak to Usman on Thursday. He said because Usman was already in the store. She said it was not fair that she was not given the opportunity to speak to him on the same day, when she told him she was available any time. “I just immediately get handed a formal letter with allegations against me?”
After the call, she messaged Nashim asking again for Usman’s number. He replied that Usman was not available, and she could discuss anything with him on Monday. She later remembered she had Usman’s and HR’s email. During the time of distress earlier, she called the Employee Assistance Program (EAP), as she was then and still was truly emotionally distressed from the false allegations.
She believed the incident had not been handled fairly and justly. These were serious allegations, and “why isn’t HR involved at all?” She wanted HR to be present at the formal meeting on 1 May at 9am.
She had emailed Usman and HR on 29 April 2023, confirming her attendance with her daughter for support. She explained briefly what had happened after the incident and that she would email them her full incident report.
She also requested evidence to support the allegations, review of the CCTV, and for HR to be present at the meeting. Usman responded on 30 April 2023, confirming that Alisha would be at the meeting.

Applicant’s statements

The applicant’s first statement, obtained by Quantumcorp as part of its factual investigation, is dated 6 June 2023. She has repeated much of the evidence to which I have referred above, but it is necessary to again refer to some of it.
She had never experienced any conditions related to anxiety or depression before her employment with the respondent or subsequent to her employment with the respondent, but before the date of this injury.
She had induction training with the respondent and was given training in bullying and harassment. She was required to sign off on the policies and procedures that were provided. She had to confirm she understood and agreed to abide by them.
Nashim Safin was her store manager when the injury occurred. His supervision style was good. If she wanted to raise issues or concerns/complaints, she did so verbally to him.
She had been working with Ani Hossain since she was moved to their store from Penrith in August 2022. They got along well until March 2023.
There was a rule that when an employee did a presentation to a customer, other employees could not interrupt.
On 18 March 2023, she was serving a young couple. Ani came over and said she had previously served the couple. The couple did not acknowledge this.
Ani “just took over and started to do the financing”. She said they could split the sale. Ani was unhappy with this. She said Ani could put the sale under her name and she would speak to Nashim about it the next day.
She spoke with Ani later that evening about the split sale, and Ani said she was not happy with splitting it. She told Ani she was unhappy with her interrupting the presentation. She also told Ani she was unhappy with her changing her shifts all the time, as it impacted her shifts.
Ani changed her shifts to work around her husband’s roster. She believed Nashim was lenient with her, as they had the same ethnic background. They were very close at work.
She spoke to Nashim about the sale and regarding why the roster was working around Ani.
She asked Nashim to discuss the issues on 22 March 2023. Ani was very angry. She kept pointing her finger at her. She said it was inappropriate to phone her outside work hours. This made her angry, as Ani had previously called her out of work hours.

Nothing was resolved. She and Ani continued to work together but did not speak unless they needed to. It was very awkward. Ani removed her as friends from Facebook and Messenger.
The applicant then repeated her evidence about the events on 21 April 2023.
She worked over the weekend. She was very stressed about being accused of hitting, hurting, pushing, and swearing at Ani.
She was texting and speaking with Nashim constantly about talking to her and Ani and reviewing the CCTV with both present. His lack of action forced her to ask if she could file an incident report.
Nashim never sat down with her to discuss the incident. She asked if she and Ani could review the footage with him. He did not allow this.
Ani was allowed to speak with Usman Ghani and Nashim about the incident, even though she asked Nashim first several times.
On 28 April 2023, Nashim phoned and told her not to attend work for the next three days. She was crying and devastated about being suspended without being allowed to share her side of the story.
She was given a copy of the email that Ani reported to Usman and Nashim. This had allegations against her. “Her story has now changed to striking her twice, elbowing her on her way out, swearing at her repeatedly and calling her a ‘fucking bitch’”.
She was shocked and stressed about the allegations in the email. She immediately phoned Nashim and told him she was upset and begged him to talk to Usman or Jess before the weekend, as waiting all weekend to give her version of events would stress her emotionally.
Nashim told her to wait until Monday to speak to Usman. She texted him again, asking him to call Usman so she could speak to him. Nashim replied he was not available, and to tell him anything on Monday.
She called the EAP and spoke to someone “to cope”. The counsellor told her to call legal aid, which she did.
She sent Usman and HR an email on 30 April 2023. She gave her version of events and asked for HR to be involved.
On 1 May 2023 she had a formal meeting with Usman and Jessica Marsden. The HR officer, Alisha Murphy, was in the meeting via Zoom. She was in tears before the meeting commenced. She had her daughter as a support person.
They asked her to tell her side of the story, which she did. They showed her a short part of the CCTV footage. This did not show the start of the incident with Ani. They told her the start was irrelevant.
Usman told her she would not lose her job, but they wanted to move her to a different store. She told him that would make her look guilty to other employees and she would be judged. She told him she would seek legal advice.
Usman asked if she would do mediation with Ani, and she agreed. He said he would arrange for her to return to work on 2 May 2023.
She received a phone call later that day from Usman. He told her Ani would not participate in mediation. In the meantime, she and Ani would not be rostered together.
She returned to work on 2 May 2023. She told Aristi Gavriel about her problems with Ani. She felt safe telling Aristi her issues.
On 6 May 2023, she broke down crying at work because of all the pressure from the investigation, the lies Ani had spread, and feeling she was being judged. She went straight to her usual doctor at the Rooty Hill Medical Centre. She could not get an appointment.
She went to the Plumpton Medical Centre and saw a male doctor. He referred her to a doctor that specialised in workers compensation. She saw Dr Indira Datt. She told Dr Datt what had been happening at work and was given a certificate of capacity (COC) with zero work capacity until 8 May 2023. She asked for sleeping tablets and Dr Datt would not prescribe any.
She emailed the COC to Alisha Murphy, who referred her to Ms Christina Willcox, Return to Work and Safety Business Partner.
Dr Datt referred her to a psychologist, Dr [sic] Saime Dilek, at Blacktown Family Medical Centre, and a nurse prepared a mental health care plan.
On 8 May 2023, she emailed a request to amend the outcome of the formal meeting, as she found it harsh when Ani was the one that lied, was deceitful, and vexatious. The HR Manager, Nicole Cantero, responded with everything being substantiated “when they weren’t” and added more violations, which made her more emotionally and mentally distressed.
On 22 May 2023, she saw Dr Virginia Tamayo, as Dr Datt suggested she see a more experienced workers compensation doctor. She diagnosed her with PTSD (post-traumatic stress disorder) and issued a COC for zero work capacity for one month. She emailed it to Alisha Murphy on the same day.
She had not returned to work. She tried to return to work but was issued with two apparent breaches and told not to go to work. She was given a first and final warning, then an immediate two breaches.
In relation to non-work-related factors that may have caused or contributed to her condition:
·        She was getting on well with people outside of work.
·        There was nothing going on within her close personal relationships that may be causing a degree of anxiety.
·        Her friends and family were all healthy. Her husband was diagnosed with an incurable lung disease in 2012, but it was manageable.
·        She was not experiencing any health issues before the current issue.
·        She drank alcohol occasionally. She did not smoke.
·        She gambled rarely.
·        She had not experienced any personal traumas in the last couple of years.
·        She had not experienced any financial distress in the past couple of years.
·        She did not have any significant debts.
·        She did not take any illegal drugs or substances.
The applicant’s next statement is dated 8 September 2023. Much of it is repetitive. I do not intend to refer to it in its entirety.
The “toxic behaviour” at the workplace impacted her psychologically. She would tell her family about it.
They worked on rotation so that each could take a turn serving a customer. “They” would find a way to jump the queue, make excuses, and argue about it.
She had complaints about Aristi (the Assistant Manager), Fakri, Mary, and Maria. She complained that the store was short-staffed, and she had been left alone while in training, which was against company policy.
Every time they discussed issues relating to work, Nashim and Aristi would accuse them of gossiping, instead of resolving them. Maria thought it was OK to steal others’ sales, as she saw them do it.
Once she became qualified, she was still treated like a Christmas casual, expected to clean, vacuum, and throw the rubbish out at every shift. She was frustrated that she would return from her days off to find rubbish had not been taken out, and most times the floor had not been vacuumed.
The rules were that before closing, all housekeeping must be done ready for the next day. She brought this up a lot but was ignored. Eventually it stressed her, because they all got paid to do the same job, “yet they think they are more superior”. She did it most times. When Ani moved to the store, she would do it sometimes.
When Ani got pregnant, she suddenly said she could not vacuum or throw out the rubbish as she “claims it makes her vomit.” She told her the rubbish was only paper and very light. Nashim interrupted and said he had told Ani she could not do these things anymore, as it was not good for her.
This was an issue for her, as she usually closed the store with Ani, and she therefore had to do everything. She had been pregnant and never demanded special treatment at a previous workplace that required a lot of lifting. She would “truly understand” if Ani was having problems with her pregnancy, “but it was just normal and it’s her second pregnancy.” Their job did not involve any physical work besides the light vacuuming.
Ani was also allowed to rest in the back office a lot and eat any time she felt like it during work hours. This was an issue with all the staff, but they knew favouritism was the reason. “The entitlement is what irritates [the applicant].”
The roster started working around Ani and was impacting her and Maria’s shifts. She spoke to Nashim about it, and Maria complained a lot. She believed this worsened Ani’s attitude towards her, “as she could no longer get her own way.”
She always worried about her safety in taking out and putting jewellery in the safe before the store closed. This worried and stressed her a lot.
She had mentioned incidents of unfair treatment in her response and complaints to HR and Usman dated 5 June 2023, regarding the manager, assistant manager, and staff taking her sales and putting her through so much stress. During the three days she was suspended, Maria “had the audacity” to take her sale.
She felt that the incident between her and Ani was an opportunity for her colleagues to conspire to get rid of her, by Maria witnessing against her. She believed Maria had also provided HR and Usman with a screenshot of her social media post.
Nashim sided with Ani immediately, without hearing her side or reviewing the CCTV footage. Then Usman, Alisha, and Nicole Cantero covered up his unfair and biased handling of the incident because they knew she was seeking legal advice from as early as 1 May, when she told them she had filed for workers compensation.
She put up with “all their mistreatment, bullying and harassment by focusing on working hard, achieving and giving my all, as I loved my job and needed my job…” She had thoughts of resigning every time she was yelled at or mistreated but was worried she would not be able to secure another job she loved.
Michael Hill was the perfect job and environment for her. It was a good company, but the store and people she worked with were toxic. She never expected it to come to being accused, mistreated, bullied and harassed, and eventually humiliated by being fired.
She believed Nashim was lenient with Ani as they had the same ethnic background. They were very close at work. Other staff had to work around Ani’s husband, who did not work for Michael Hill.
“Everyone at work” knew about the rostering issues Ani caused and the favouritism she received from Nashim - “(they were the same nationality)”.
There was a rule at Michael Hill that an employee could not interrupt another’s sales presentation. It was part of their training and constantly raised in monthly meetings.
She repeated her evidence about the events on 18 March 2023.
When there was a problem, Nashim spoke individually to each person. She felt Ani would lie about what happened, so she wanted all of them to be together. “Nalini” had heard Ani talking about the incident, and the version was completely different. “Hearing that lie” upset her a lot, so she wanted to speak to both of them together.
She repeated her evidence about the incident on 21 April 2023.
At no time did she hit Ani. She simply pushed her hand off her arm in self-defence. Ani got up and brushed her body against hers. She stayed stationary.
Nashim never discussed the incident with her. He did not allow her and Ani to review the footage with him. She was being accused of something she did not do, and this was very upsetting. It was emotionally affecting her.
Ani was allowed to speak with Usman and Nashim, even though she asked Nashim first
several times to speak to Usman or HR. Ani was given the chance to explain her side, but she was not given the same opportunity.
On 28 April 2023, Nashim phoned her and told her not to attend work for the next three days. She was crying and devastated. She was not yet able to share her side of the story, but Ani was.
Nashim told her she would need to attend a formal meeting on Monday. She wanted to speak to Usman, which they knew. Nashim did not use words like “suspension”. He just said “don’t come in” on Friday, Saturday, or Sunday. She asked him to email her the letter. She received it later that day.
On 1 May 2023, she had a meeting with Usman and Jessica Marsden. Alisha Murphy was in the meeting via Zoom.
They asked her to tell her side of the story, which she did. They showed her a short part of the CCTV footage. It did not show the start of the incident with Ani. They told her the start was irrelevant.
She disagreed that it was irrelevant. Ani was screaming and yelling at her. She then walked over because she was triggered. They showed the part of the clip where she walked over and pushed Ani’s hand away. She was told everything else was irrelevant “because there was contact.”
She said she had made contact with Ani, but it was not a strike. It was simply to push her hand away as Ani had touched her first on the arm. Ani had touched her first. It was not a strike.
When she was explaining her version, Jessica and Usman said they had not seen the part she was talking about. They asked her and her daughter to go out three times, each of 15 minutes. It seemed to her that they still did not have the full clip.
Usman said that sometimes “we can’t remember everything”. She said it was the most important part because she was triggered and provoked.
She acted it out at the meeting, exactly as it happened. They were looking at her as if she was going crazy and making up stories.
Usman told her she would not lose her job, but they would move her to Blacktown or Rouse Hill. She told him this would make her look guilty and she would be judged. She said she would seek legal advice.
She said she was triggered, provoked, and did not strike Ani, but pushed her hand away. She said, “I didn’t fucking hit you”, swearing in the heat of the moment, but did not call Ani a “fucking bitch”. She did not call her names or anything. She told them the truth.
Usman asked if she would do mediation with Ani, and she agreed. He said he would arrange for her to return to work on 2 May 2023.
She received a call later that day from Usman. He told her Ani would not participate in mediation. She was disappointed, “but goes to show what Ani is like”. Usman told her she and Ani would not be rostered together.
On 3 May 2023, she received a “first and final warning letter”. It said she had failed to meet the required standards of conduct. The allegation regarding swearing was “unsubstantiated”, and there was “evidence” that “substantiated” she had “struck…Ani on the arm once.” The elbowing was unsubstantiated.
She wished to state that she did not strike Ani on the arm. It was not a strike, and she simply pushed her hand away in self-defence. The original allegation was that she struck Ani on the arm twice and elbowed her on the way out. The allegation changed.
She was asked to sign and date a document, part of which acknowledged that she “struck” Ani. She refused to sign it as she did not strike Ani. She told Usman this in their one on one meeting on 5 May 2023. She refused to sign something that was not true.
She told Usman she had a very clean record at work, and felt it was unfair because it did not happen the way they were made to believe, and the allegations were untrue. The first and final warning stating bullying and harassment was harsh for something she did not do.
She said bullying and harassment “is done previously, currently and ongoing.” This was a onetime altercation. She told Usman she would write a request to amend [the document.]
On 6 May 2023, she broke down crying at work because of the pressure from the investigation, the lies Ani had spread, and feeling judged by her colleagues. Maria and Nashim acted as if nothing had happened and acted fake. “It all got to me”. She started crying, could not cope, and started to break down.
On 8 May 2023, she emailed HR to request amendment of the outcome of the formal meeting. She found it harsh when Ani had lied, was deceitful, and vexatious.
The HR manager, Nicole Cantero, responded to her letter. She stated that it was “clear in the footage that your behaviour is intimidating, threatening and you strike Ani while speaking aggressively to her.” She had not seen this exact footage and wished to see it. She denied striking Ani. She was acting in self-defence and simply pushed her arm away as Ani was touching her first.
The letter stated that “a reasonable person would perceive that this behaviour would offend, threaten, injure or intimidate another workplace participant and is therefore considered harassment and prohibited at Michael Hill.” She considered that Ani’s behaviour fitted this and would like to know if she also received a first and final warning and was treated the same way.
Usman called on 11 May 2023 to advise her that she had breached confidentiality and the social media policy. It is unnecessary to repeat the detail, as no submissions were made about this action.
Her employment was terminated on 7 June 2023. She asked for the letter, which she later received.
She sought legal advice regarding unfair dismissal. Her lawyers made an application, and a settlement was reached.
She remained affected by her injury. She continued to see her general practitioner (GP) monthly, and Dr [sic] Dilek around fortnightly. She had been referred to a psychiatrist but had not yet been able to see one.
She had significant anxiety and depressive symptoms. She kept thinking about the work events. She got angry, frustrated, and tearful when she recalled what happened. She had low mood and motivation and spent most of her time at home to [sic] herself. She had impaired focus and concentration. Her memory was bad. She had withdrawn from friends and family and social activities. She got significant headaches and was not sleeping well.
Since the injury, she had started to binge eat, gained weight, and been diagnosed with Type II diabetes. This diagnosis was made on around 9 May 2023.
She was unable to work as a result of her injury.
The applicant made a further statement dated 6 October 2023. Once again, much of it is repetitive.
She was not given a first and final warning at the meeting on 1 May 2023. All they agreed on was that she pushed Ani’s hand away “in self-defence as she was touching my right arm.”
Ani was lying about being scared to work with her, because immediately after their altercation, she was serving a customer.
Nashim did not ask who wanted to go home. He just sent her home. She was so stressed from Ani accusing her that she had no choice but to go home.
Ani’s parts where she was at fault were all omitted to put all the blame on her. Based on the CCTV footage, Ani was the one who brushed against her on the way out.
The applicant made a further statement dated 7 December 2023.
As regards the Record of Meeting/Discussion with Jess Marsden, Usman Ghani and Alisha Murphy on 1 May 2023:
(a)     There were no records of their questions in writing for her, unlike for Ani and Maria. It was just her response.
(b)     Most of the record was similar to the invitation letter with allegations.
(c)     She was asked her version of events, then shown the short, edited CCTV footage, showing her approaching Ani immediately. There was a very short discussion, then she pushed Ani’s hand away, then Ani walked out. They did not show her the CCTV footage first. It was only shown to her and her daughter after she told them her version. It was edited to just show her fault and omitted Ani’s fault.
(d)     She told them exactly what was written in her Full Incident Report. Jess mentioned that it was accurate to the report.
(e)     Her responses were not all included in the First and Final Warning Outcome to show her reasonable explanations, contradictions to Ani’s allegations, and complaints against Nashim. Usman changed it again, included only what he wanted to include, and omitted a lot of what she truly said.
(f)      She was suspended after the investigation was completed and the suspension was indefinite and not clearly explained in the allegations letter. “It seems to me it was already a disciplinary action rather than for investigation purposes.” She was not given an opportunity to respond in writing for the 1 May formal meeting invitation. She was not given an option to appeal the outcome on the first and final warning letter.
(g)     The below statements were not included in her factual investigation statement. She did not get to explain in full detail what happened in the 1 May meeting, because it was more focussed on what happened between her and Ani and Nashim’s actions. She was told to only respond to the specific questions.
(h)     She started to give her version of events and explained that Ani interrupting her customer presentation was against company policy, and she had done this for the second time. Jess interrupted and told her it was not a company policy, as if justifying Ani’s actions. She explained that she thought it was a company policy, as it had always been part of their training, and Aristi pointed this out all the time, as she said it was very unprofessional. Jess said Aristi was not the store manager. She said that Nashim pointed it out all the time too. Jess said there was no specific policy, but it was part of customer service not to do it.
(i)      After telling them her version, Jess mentioned that it was quite accurate to her incident report. She said, yes, because she was telling the truth. “In tears”, she mentioned that since she started working at the Mt Druitt store she had been bullied, mistreated, and talked down to by most of the staff. Jess told her she should have reported each incident as it happened, because they could only action what was happening now. She told them she did not report it because she was only new and wanted to keep her job. They did not seem interested and changed the topic back to the allegations. She included this in her response/complaints to the two apparent breaches dated 5 June 2023. Her complaints were ignored, and her employment was terminated on 7 June 2023.
(j)      Her daughter mentioned that she had told her and her dad about the bullying and mistreatment, but she was also ignored. Jess again said they could not really action what happened in the past.
(k)     They did not care about her side of the story. Jess said they were just focussed on the CCTV footage and allegations because there was contact, and the start and everything else was irrelevant. They did not seem to care about what Ani did to provoke or trigger her. Jess said her behaviour was not acceptable, so she asked if Ani’s abusive behaviour towards her was acceptable; and she said that right now they were investigating her. She had to keep repeating what Ani did to provoke her, and that her behaviour was verbally abusive, but Usman said that they were talking about the specific allegations. She kept insisting that Ani’s behaviour was abusive by yelling and pointing at her, telling her to get out, and she provoked and triggered her.
(l)      Her daughter asked if they could watch the full CCTV footage as it seemed they were being biased and blaming her for everything when Ani started it and was being verbally abusive. Jess said they were only talking about what she did and could not talk about Ani right now. Jess said they were focussed on the physical contact and there was violent behaviour, and there was no physical contact in the other footage.
(m)    Jess said they had also relied on what Nashim told them. She said he was not there when it happened. Jess said it was also about the CCTV footage. Since there was no audio, they had compared her actions based on what they had seen, as to what Maria Demasi had heard, and based their investigations on that.
(n)     She and her daughter repeatedly asked for the part of the CCTV footage where Ani was pointing at her, telling her to get out. They kept telling them everything had been noted. She told them they all needed to watch it, as she was advised to make sure she watched the full and raw footage. Jess said she had not seen the missing part and Usman said he had not seen it. They asked them to leave the room so they could try and find it. They had to leave and come back three times. They could not provide it. They had not provided her lawyer and EML the full footage with the timestamp and had not provided it to the “PIC”.
(o)     She refused to be moved to Rouse Hill or Blacktown because she was afraid she would be judged to be guilty. Jess said it was not a one off and it was for everyone’s wellbeing.
(p)     She believed they did not expect her to take them this far. They probably expected her to resign or accept the mistreatment and termination of her employment due to them “trying to scare and stress me by giving me heavy violations and a harsh outcome.”

A summary of her responses to the Table of Allegations:
(a)     She did not swear at Ani directly. She said, “I didn’t fucking hit you, I didn’t fucking hurt you”, once, not twice.
(b)     CCTV evidence did not prove that she struck Ani, “yet they keep forcing this violation on me”, although they had no evidence to prove it.
(c)     It was “odd that their witness Maria” could remember most of what she heard from the back office but not much of what was said at the front of the store. The altercation happened first in the front of the store, “right in front of Maria”. Usman did not ask Maria what happened from the start. The incident at the front of the store would prove who was at fault and what led to the incident in the back office.
(d)     It was unsubstantiated that Ani pointed at her, based on the CCTV footage. She believed it was edited out, as it would show Ani’s inappropriate behaviour and at fault [sic] “which they are trying to conceal.”
(e)     Ani touched her first and she pushed her hand away in self-defence. It was not intentional.
(f)      Ani brushing her body as she passed could clearly be seen on the CCTV footage, “yet they again Unsubstantiated my version stating based on the CCTV footage and no Independent witness.”
(g)     Based on the CCTV footage all of Ani’s allegations were not proven, yet they still “Unsubstantiated that Ani lied about the incident”? “Makes sense now, because Usman actually changed Ani’s allegations to worsen my violations?”
(h)     Even though Ani’s allegations contradicted her version, the CCTV footage, and Maria’s statements, “they still Unsubstantiated her lies, but put all the blame on me…” They also added “more violations…”
(i)      Their reasons did not justify her complaints on [sic] Nashim’s “unfair, unjust and biased handling of the incident.” He came to the store after the incident but did not speak to her or Ani, but only to Maria. After that, nothing was done, even when she requested Nashim to action the incident on 25 April and 26 April via text message and phone call, “as Ani had told lies to a work colleague and was emotionally affecting me”.
(j)      She did not believe Nashim raised the incident with HR on 26 April, because Usman and HR acknowledged her request via email on 29 April for HR to be present at the meeting on 1 May. Usman was “completely biased, intimidated and discriminated [sic] me.” Nashim and Usman made her feel guilty, confused, worried and scared, which affected her mentally, emotionally, and physically. She felt sick, angry, and depressed, had anxiety, headaches, could not sleep, and her hands shakes [sic] in the early mornings.
Her responses to Maria Demasi’s interview by Alisha Murphy dated 4 May 2023:
(a)     Alisha kept mentioning Maria’s statement to Usman. She assumed it was the statement on 27 April 2023, which they did not submit to the “PIC”. They only submitted the interviews on 5 May, which were done only after issuing her with allegations, outcome, and disciplinary action. Maria did not say that she did not want to hear about it. This is why they also did not submit to the “PIC” the CCTV footage where Ani interrupted her customer presentation, as besides proving that Ani was at fault, it would contradict Maria’s version.
(b)     Maria stated that both she and Ani were abusing each other and both screaming and yelling in the back office, but Ani denied it. Maria also stated that she kept going when Ani walked away, which was not true, as she sat on the manager’s chair and called Nashim to report the incident and Ani accusing her.
(c)     Maria stated that Ani said, “leave me alone, get out of the store”. This was similar to her version and was ignored. This was also the part missing from the CCTV footage. Maria stated that “BTY kept going”. She did, because Ani was yelling at her and telling her to get out. She was triggered and provoked. Maria was not able to see what Ani was doing.
(d)     Maria stated, “I heard the ‘F’ word”, and “BTY was swearing”. Maria was not sure what she heard, yet Usman alleged she “repeatedly swore at Ani and called her a ‘fucking bitch’”.
(e)     Maria “peeked” in the back office and told them to be quiet as she had a customer, but there was no way she would have seen Ani upset or scared as she stated. It was very quick, and she was right in front of Ani, covering her from Maria’s view. She believed Maria stated according to what Ani told her immediately after the incident.
(f)      Maria stated that she got aggressive when she thought the sales were hers, but she never had a record of taking colleagues’ sales. Maria had issues with her and all the other staff. She and Maria had had a few incidents, including Maria taking her sales.
(g)     Maria had stated she would be scared working with her again. She was “speculating and assuming.” Maria “always plays the victim” but she was the bully and aggressive with sales.
Her responses to Ani Hossain’s interview with Usman Ghani on 5 May 2023:
(a)     Usman stated that Ani had provided a statement on 27 (April) about the incident. It had not been submitted to the “PIC”. She had not seen any statement.
(b)     The investigation had been completed and they had taken action, even though they still had further issues to bring up with Ani. Alisha informed her via email on 4 May that there would be investigations of Ani and Nashim for the allegations she raised on 1 May, “but they have already concluded that I was already guilty?”
(c)     During the interview, Usman was telling Ani what she had said and done, instead of allowing Ani to tell her version, “just like they did with me.”
(d)     Ani stated, “She was hitting me”, and “BTY pushed me”. The CCTV contradicted her statements. The invitation letter changed to striking Ani twice and elbowing her on the way out. “Why did it suddenly become an assault?” She thought they were trying to scare and stress her by “giving” her harsher allegations. They probably expected her to resign or accept the termination.
(e)     Anything Maria stated that contradicted Ani’s statement was ignored.
(f)      Ani stated this was not the first time there had been an issue with her. After the first incident, nothing was resolved, “because even though Ani was clearly in the wrong, Nashim did nothing.” He allowed them to keep working together. It was awkward and stressful, as they did not talk unless it was work related, and there was tension, which led to the second incident.
(g)     Everything Ani claimed happened was believed, even though the CCTV footage proved otherwise. They did not value any of her reasonable explanations.
(h)     Ani put both hands on each side of her forehead while leaning both elbows on the desk. She was very angry and said “Arggg” loudly. This was part of the CCTV footage missing, “so they have obviously seen it, because it wasn’t on the CCTV footage they submitted to the PIC, yet they have mentioned it.” She did this gesture after she pointed and told her to get out. That was what triggered and provoked her to walk towards her. The allegations that she hit or elbowed Ani differed, but both could not be proven based on the CCTV footage. She did not know why Sean [Rose] was “suddenly in the picture”. He was the Regional Manager before Usman.
(i)      The Quantumcorp report stated that the employer requested that Ani not be interviewed. If she was telling the truth, it should be confident to allow her to be interviewed. Jess and Usman were also not interviewed. Maria was not interviewed “when she was their witness”. Aristi Gavriel was also not interviewed.
(j)      Ani’s allegations in her interview on 5 May were different to the allegations sent to her on 28 April. Based on the CCTV footage, both were untrue. Usman changed Ani’s allegations. That showed how “unfair and biased” he was. Based on the CCTV footage, EML’s statement was also untrue.
(k)     After reading Ani’s interview by Usman and Maria’s witness statements, she felt [she was] treated unfairly, unjustly, bullied, harassed, and humiliated. There was “definitely” intimidation and discrimination, and she believed her colleagues, managers and HR all conspired to find ways to terminate her employment.
(l)      They had concluded from the start that she was guilty of all Ani’s allegations, “even though the evidence…contradicted her story.” They had “tamper[ed]” the CCTV to make her look guilty. Usman worsened the allegations and told her “sometimes we don’t remember everything that’s happened.” “There were 7 employees that conspired to get me fired?”
(m)    She felt there was adverse action and retaliation when she exercised her employment rights. She felt Usman wanted to terminate her employment due to her seeking legal advice and submitting a workers compensation application, “because there was definitely bias, intimidation and discrimination during the workplace investigations, outcome, disciplinary, breaches and termination. I felt truly bullied, harassed and humiliated.”
(n)     She felt Nashim covered up Ani’s fault and Usman covered up their fault. Usman started to “backtrack” when he realised she was not going to give up. Nashim, “may I mention is an IT graduate” and she believed he was the one who “tampered with the CCTV footage”, as he stated he reviewed it and saw her pushing Ani’s hand away. He did not mention what happened before that, “concealing the start where Ani was at fault to make it look like I was the only one at fault.”
(o)     She was not aware she could have requested a copy of all the interviews, statements, and documents related to the workplace investigations. She could have gone further to a hearing with the FWC (Fair Work Commission) in regard to her unfair dismissal if she had this information, “especially with the knowledge that Usman did everything in his power to make me look guilty and terminate my employment.”

Invitation to attend formal meeting

The letter from Mr Ghani inviting the applicant to the meeting on 1 May 2023 is dated 27 April 2023 and was emailed to BTY on 28 April 2023.
The applicant was advised that the meeting was to discuss Mr Ghani’s concerns surrounding the incident on 21 April 2023 and her behaviour towards a fellow team member. The allegations were:
(a) it is alleged that you have approached team member Ani Hossain in the back room of the Mt Druitt store following a customer interaction. It is alleged that during this time you have repeatedly sworn at the team member (Ani) calling her a “fucking bitch”.
(b) It is further alleged that during this interaction with Ani Hossain you have struck her on the arm twice and elbowed her on her way out of the back office area.
The applicant was advised that the concerns were in breach of the respondent’s Code of Conduct, and such behaviour was not in line with “Our Values”. The respondent would consider her response and any other necessary information before making any decision.
If the respondent decided that the applicant’s behaviour amounted to misconduct, the outcome of the meeting may result in disciplinary action, up to and including possible termination of her employment.
BTY was encouraged to bring a support person to any interview or meeting. Due to the nature of the complaint, she was not able to bring a colleague.
The applicant was advised that the matter was confidential, and she was not permitted to discuss it with any persons in the company, other than her manager, HR, and support person.
Due to the nature of the allegations, the applicant was not required to attend the workplace, complete any work, or have contact with team members or customers until otherwise notified. She would receive her full pay during this period.
The applicant was reminded of the free EAP, and its contact number.

Applicant’s response

The applicant sent an email to Mr Ghani on 29 April 2023.
She would “definitely attend” the meeting, to “respond to these false allegations”, with her daughter. She asked that the email be forwarded to Ms Jess Marsden and that HR attend the meeting.
These were very serious allegations “which are all false”. She requested the evidence to support the allegations. She had requested Nashim “over and over again” to have the CCTV REVIEWED by him or HR with her and Ani present. She was requesting this again, AS UP TO DATE, I STILL HAVE NOT BEEN GIVEN THE OPPORTUNITY TO REVIEW THE CCTV. (Capitalisation in original.)
She had advised Nashim on 26 April 2023 that she wanted to report the incident and he said he was not sure there was a report incident for this type of issue, that he would ask HR and get back to her. She was surprised that “Ani suddenly did”.
She had wanted to contact him yesterday, as she was emotionally distressed, crying, and begging Nashim for his number. He told her he was not available, and she could just say anything on Monday. She had to seek the help of EAP to calm her nerves. She had not been eating and sleeping well since the incident. She had been shaking at night and not functioning, “due to all the stress these false allegations are causing.”
She had found his email address on a photo of her winning the highest credit sales.
After receiving Mr Ghani’s response (below), the applicant emailed him that she would send him and HR her “full incident report today.” This is the document to which I have referred above.

Mr Ghani’s response

Mr Ghani emailed the applicant on 30 April 2023. He acknowledged her request that “Alisha from HR” be present via Teams tomorrow.
He attached a copy of the respondent’s Grievance Policy. If the applicant had any other concerns or complaints, they could be addressed as separate matters.
The purpose of the meeting on Monday was to provide the applicant with the opportunity to respond to the allegations and present any other evidence or material.

First and final warning

The applicant was issued with a letter dated 3 May 2023. It confirmed the outcome of the meeting held on 1 May 2023.
The applicant had been asked to respond to concerns regarding an incident at the Mt Druitt store on 21 April 2023, and her alleged inappropriate behaviour.
The allegations were:
(a) that she approached Ani Hossain in the back room of the store following a customer interaction. She had repeatedly sworn at Ani, calling her a “fucking bitch.”
(b) during this interaction with Ani Hossain, she struck her on the arm twice and elbowed her on her way out of the back office.
The applicant had stated:
·        She was triggered and provoked.
·        She felt Ani had broken policy by approaching a customer whilst she was presenting.
·        She believed Ani was pointing at her aggressively, which further provoked her to speak to her in the back room.
·        She did not call Ani a “fucking bitch”.
·        She did say “I didn’t fucking hit you.”
·        She had approached Nashim following the incident to complete an incident report.
The respondent had considered her responses and determined she had failed to meet the required standards of conduct by a team member. Her conduct had breached EEO (Equal Employment Opportunities) Bullying and Harassment Policy 2308 and Code of Conduct 1006.G.
Additionally, the applicant’s actions were not in line with “Our Values, and Competency Framework”. This served as a first and final written warning. The applicant would also not be eligible for the bonus accrued for April 2023.
The applicant’s failure to follow appropriate behaviour would “not be tolerated.” She was expected to improve her behaviour by reviewing the abovementioned documents and resitting EEO Bullying and Harassment Day Force Learning Module. She was required to read and sign the above policies.
The applicant was required to read and sign the letter by 5 May 2023. She was expected to make changes to correct her conduct and performance immediately and adhere to all company policy and procedures moving forward.
The applicant was advised that this was a serious matter, and further instances of unacceptable performance or conduct may lead to further disciplinary action, up to and including termination of employment. The respondent trusted that she would respond positively, improve her performance and conduct, and no further action would be required.
The matter was confidential, and the applicant was not permitted to discuss it with other persons in the company, other than her manager, HR, and support person. This was a lawful direction and failure to comply may result in disciplinary action, up to and including possible termination of employment.
The applicant was reminded of the availability of the free EAP. Any questions were to be directed to Mr Ghani or Ms Murphy.

Meeting with applicant on 5 May 2023

There is in evidence a record of a meeting with the applicant on 5 May 2023. The applicant has referred to a “one on one” with Mr Ghani on that date, so it is assumed the record relates to that meeting.
The applicant was reminded that everything pertaining to the allegations was strictly confidential and the case had been closed. All parties had been interviewed and they had followed due process.
“Showed” the applicant the footage twice, as she attempted to look for Ani pointing and screaming. “I asked, have you seen what you were looking for?” She mentioned she was sure it happened, despite not being able to see it on the footage “with me”.
The applicant mentioned she would like to seek legal advice, as she did not agree that she had “striked” [sic] Ani. He reiterated her previous admission and she continued to mention she had never agreed to the word “strike” and her lawyer advised her not to sign anything she did not agree with. He mentioned it was up to her if she signed it or not, but the decision was still in place, regardless of her signature.
The applicant kept on mentioning that she was stressed, and she was advised to keep using EAP. She mentioned that she may take stress leave.
He advised the applicant that his responsibility was the safety and welfare of the team, and he needed to know she would be OK to return for more shifts. She mentioned she did not want to go to any other store.
He closed the meeting and thanked the applicant for her time.

Applicant’s response to first and final warning

On 8 May 2023, the applicant wrote to Mr Ghani and Ms Murphy, requesting that the meeting outcome be amended.
Based on the CCTV footage she did not strike Ani Hossain even once. She admitted to pushing her hand away with her right arm “in self-defence”, as she was pointing at her right arm. She just reacted to her touching her arm “also” and that was what was agreed at the formal meeting.
She would not accept the outcome of bullying and harassment because it was not done previously, repeatedly, or ongoing. It was a “one off altercation” and “not considered bullying or harassment.”
She did not agree with the “final and last warning” [sic] outcome, as this was her first incident. She found the outcome harsh, as she had a “good and clean record” with “proven good work ethics and achievements.” It seemed that, by putting fault on her, it would cover the failure to follow the “correct and proper Grievance Procedure Policy.”
Ani Hossain was proven to be at fault from the start, “then lied and was deceitful”. She was also vexatious. She also told these lies to Maria, ruining her reputation, which emotionally affected her. She could have lost her job if there were no CCTVs as Nashim Safin was “biased from the start.” “Why should I be given an unfair and harsh outcome for their wrongdoings?”
The incident was not handled in a timely manner by Nashim Safin and was “unfair, unjust and biased.” They did not involve HR until she requested it, and just a day before the meeting. She was handed allegations without evidence and suspended for three days, causing her embarrassment.
The unfair handling of the incident distressed her emotionally, mentally, and physically. She had been seeking EAP since the day the “false allegation letter” was emailed. Since then, she had had trouble sleeping, eating, and had anxiety. She was always teary at work and felt she was being judged. On her Saturday shift, she broke down and had to go home to see a doctor.

During the meeting on 1 May, the “outcome verbally” was to move her to Blacktown or Rouse Hill, but she said she would resign and seek legal advice. She was told it was not a forced move but an option. “Why can’t they move Ani since the incident started from her breaking a company rule for the 2^nd time, lied, was deceitful and vexatious?” Nashim was also at fault by not following the correct policy, “and also caused unnecessary escalation and distress for me.”
She lived 10 minutes from Mt Druitt and did not drive. It was convenient for her and her family. She feared and worried that if she moved, she would be judged.
This “unfair outcome letter” had added more distress, due to the “exaggerated findings and punishment.”
The trauma was “indescribable.” It had caused her “stress, anger, annoyance, anxiety and depression.”

Response of Nicole Cantero – Group Human Resources Manager

By letter to the applicant dated 8 May 2023, Ms Cantero advised that the request to amend the outcome had been forwarded to her by Ms Murphy, as per the Grievance Procedure when a team member was not satisfied with the resolution of their grievance.
After reviewing the CCTV footage, the respondent was comfortable in its assessment and the action taken to provide the applicant with a first and final warning. It was clear in the footage that her behaviour was intimidating, threatening, and that she struck Ani while speaking aggressively to her. The disciplinary action would therefore stand.
She had reviewed all allegations, CCTV footage, and witness statements, and believed the process was in accordance with the Grievance Policy and EEO Bullying and Harassment Policy, was fair and timely, and according to the principles of natural justice.
The outcome of the investigation was that the allegations of inappropriate behaviour were substantiated, including both inappropriate language and threatening and intimidating behaviour, including striking Ani Hossain on the arm.
The applicant’s behaviour, as evidenced in the CCTV footage, was threatening and a reasonable person would perceive that this behaviour would offend, threaten, injure, or intimidate another workplace participant. It was therefore considered harassment and prohibited at Michael Hill. It considered the outcomes to be appropriate and reasonable management action, given the circumstances.
She offered the applicant continued access to EAP.

Applicant’s response

By letter dated 12 May 2023, the applicant responded to Ms Cantero.
The applicant agreed to demonstrate conduct consistent with the Michael Hill values and standards of behaviour at all times.
The applicant still did not agree to striking Ani Hossain, as that was “unsubstantiated”. She admitted to pushing her hand away in self-defence with her right arm.
The allegations against her were all “unsubstantiated”, “especially the inappropriate language towards Ani, the striking twice and elbowing.”
There was no audio, “so you have no idea what Ani was actually saying to me to provoke and trigger me. Ani may look calmer in her body language, but her mouth was certainly not…”
Maria was at the front of the store, busy, and did not see the incident in the back office. She and Maria had also had issues in the past, recently “due to her always taking my sales”. She believed her witnessing was irrelevant. Nashim was also not there.
What was “substantiated”, based on CCTV footage, was Ani’s behaviour in not complying with a company rule, “lied, was deceitful and vexatious”. The investigation in regard to her complaint of her false allegations was completed on 9 May 2023.
Nashim Safin did not handle this incident in a timely manner. He was “unfair, unjust and biased from the start”.
HR was not involved until she requested [it]. “Everything was fully detailed in my Full Incident Report” and complaint.

Evidence of Ani Hossain

There is in evidence an email from Mr Rose to Mr Ghani, copied to Ms Murphy, dated 5 May 2023. Its subject line is “Notes on Formal Meeting with Ani”. It referred to a statement dated 27 April 2023, which is not in evidence.
Mr Rose asked “Uzzi” to add anything he had missed.
Ani had been advised that she could bring a support person and had chosen not to.
The contents of the email may be summarised as follows.
When BTY said the customer was to be transferred to her, Ani did not say she did not want to speak to her ever again. She “came at me and her face was scary. I asked her to talk to Nashim, I just can’t talk to you right now.”
Ani was asked if she raised her voice. She responded that she had said the applicant was hitting her, “I don’t want you to do this.” Maria came to the back room and said a customer was in store. She said she was sorry, and then BTY pushed her.
This was at the end of the interaction and BTY was still angry and had a very angry face. She asked her to talk to Nashim because she was so angry. She then put away the jewellery cleaner “etc”.
She did not hear BTY say she needed to follow company policies. She “never” said she did not care about the rules. She just said to speak to Nashim, because this was not the first time there had been an issue with her.
It “did not happen” that she raised her voice and had her hand outstretched and finger pointed, yelling “get out, get out”. She was making a wish list for the customer. Before she knew what happened, the applicant was raising her voice at her. She had asked her to speak to Nashim as she could not speak with her. “Then she came to me”.
Asked what the applicant was saying, Ani said “I don’t know, she was saying you are a ‘fucking bitch’, I just didn’t want to listen to her, I just wanted to do my job.” The last time this happened, it was a lot of pressure and took her a long time to get over it. “Her face was so aggressive and she was coming to me”.
Usman asked Sean to view the action.
It was noted that Ani covered her ear with her hand on the side of her head, made it clear that BTY was aggressively moving towards her. “Then when I left she hit me”.
Usman asked if Ani ever struck the applicant? Did she move past and say, “don’t touch me”? Ani said they could see on the camera she did not do this. She went to the toilet because she was shaking. It was terrible because she was pregnant.
Usman acknowledged that this was very tough and thanked Ani for coming. He asked if she wanted to add anything else, and she said, “I have only told you the truth”.
Usman said they would take a break for five minutes, but the email ends there.

Evidence of Alisha Murphy – HR Business Partner

Ms Murphy’s statement is dated 7 June 2023.
She first met the applicant via Teams on 1 May 2023.
The applicant was given training in EEO Bullying and Harassment and provided with copies of the respondent’s Code of Conduct; EEO Bullying and Harassment; Work Health Safety and Security Policy; and use of CCTV in the workplace.
On 26 April 2023, she was informed by Nashim of an incident between team members at Mt Druitt on 21 April 2023.
Usman Ghani was in store on 27 April 2023 and obtained statements from Maria Demasi and Ani Hossain. He spoke to Nashim around this time.
She oversaw the investigation, and Usman ran it.
She reviewed the statements and the CCTV footage on 27 April 2023.
She recommended that the applicant have a formal meeting to discuss the allegations. She drafted a notice of invitation to attend a formal meeting, which Nashim sent to the applicant. She was offered a support person.
On 1 May 2023, Usman and Jess Marsden met formally with the applicant, who had requested HR presence. She was on a Teams meeting, as she was located in Brisbane.
The applicant’s daughter was present as a support person.
The applicant gave her version of what she said to Ani. She was issued with a first and final warning at the end of the meeting.
On 8 May 2023, the applicant emailed her a medical certificate for 5 to 8 May 2023.
On 19 May 2023, she received a WorkCover certificate from the applicant, with zero work capacity. She handed the WorkCover process to Christina Willcox. The applicant had not returned to work since this date.
On 7 June 2023, due to the substantiated further breach of conduct, the applicant’s employment was terminated.

Evidence of Nashim Safin

Mr Safin’s statement is dated 13 June 2023.
The applicant had been given EEO training in bullying and harassment. She was provided with the respondent’s Code of Conduct, Anti-Bullying and Harassment Policies and Procedures; Staff Grievance Procedures; and Performance Management/Discipline Policies and Procedures. She was required to confirm that she understood and agreed to abide by them.
He closely supervised the applicant.
The applicant worked well alongside Aklima Hossain until March 2023. They had a disagreement regarding a sale. He spoke with them, and they seemed to work well after that.
On 21 April 2023 he was on annual leave. The applicant and Ani both called him on his mobile. Ani stated she was scared to work with the applicant. The applicant stated she could not work with Ani. He said he was near the store and would come in and find out what happened.
He came into the store at about 2.00pm. He spoke to Maria Demasi. She said the applicant and Ani had an argument regarding a customer. The applicant approached Ani in the back room and there was a further argument.
He did not speak to the applicant or Ani regarding the issue. He only asked them who wanted to go home, and the applicant said she did.
The following Tuesday, he returned to work. He looked at the CCTV footage. He saw Ani sitting at the computer in the back room, and the applicant approaching her and pushing her hand.
He phoned Usman Ghani and told him what had happened. Usman came into the store the next day and spoke with him, Ani, and Maria. He believed Usman and Alisha Murphy spoke with the applicant a few days later.
Usman and Alisha took over the investigation.
The applicant worked for a few days, and he received notification from HR that she was sick. He did not know if it was a sick or WorkCover certificate.
The applicant did not return to work after this time. He was informed on 9 June 2023 that the respondent had terminated her.

Evidence of BZG

BZG is the applicant’s daughter. Her statement is dated 6 September 2023.
Her mother had been stressed and psychologically affected since starting work with Michael Hill on 1 November 2021.
Mum would discuss the unfair treatment between her co-workers, mainly the times they were fighting with regards to stealing each other’s sales. Co-workers talked badly about each other. They eventually did the same with Mum. She could tell it was “stressing her out, making her anxious and causing her sleep to be affected.”
Mum told her that Nashim had said one reason why he kept her was to attract Filipino customers, as 60% of the store’s customers were Filipinos. Nashim took her sales. She was very upset. Her assistant manager also took her sale twice.
“As time went on”, the topic on [sic] being treated unfairly was not just with regard to stealing sales. It was about tasks such as cleaning, vacuuming, and taking out the rubbish.
Her co-worker interrupted her mum’s presentation. She was told this at least twice. Her co-workers yelled at her, and another fought with her. Another kept upsetting her.
Mum always came home very stressed due to her “toxic workplace and toxic co-workers”. This was all she would talk about. She was also worried about her safety when she closed with the assistant manager.
Mum was very upset when her promised permanent part time [position] was not approved by Nashim. Because Ani moved to their store, she was suddenly denied it.
These were the incidents she could clearly remember before the incident in April, but Mum “would tell us so many stories every time she came home from work.” She would get tearful and angry.
She was shocked to hear what Mum was accused of. When she got the letter with the allegations that said she “called Ani swear words” and struck her twice and elbowed her, she could not believe it. She knew her Mum was not that sort of person. Mum completely denied the allegations.
She attended the meeting on 1 May 2023 as support person. It seemed very biased to begin with. They would not let her mum finish her sentences and cut her off. She would begin saying she did not do any of the things Ani said she did.
She told them she wanted to see the full CCTV footage. They were sent out and back three times. She saw the footage. There was no striking. She saw Ani touch her mum on the hand and she instinctively reacted by pushing her hand away. It was not a strike and there was no elbowing. She asked for a copy of the CCTV, and they said it was not allowed to be sent. They emailed it to Walker Law Group, and it was forwarded to her mum.
“Straight away”, she saw that it looked edited. It did not have a time stamp. It looked slow motion and clipped. It was not the same footage shown at the meeting.
Her mum was crying and tearing at the meeting. It seemed that they did not care about her. They made her feel guilty for something she did not do. They kept pushing her and asking her questions.
Jess and Usman were making Mum feel as it was her fault, and Ani’s actions were not relevant. She was confused. Mum was confused because she was alleged [sic] of doing things she did not do. The footage showed that she did not do it, but they were still blaming her.
What she saw on the CCTV footage was exactly as Mum described it to her, and not like it was described in the allegation. They did not show how Ani triggered Mum, only her pushing Ani’s arm away after she touched Mum’s arm first.

CCTV footage

I have viewed the footage several times. There are five videos, two of which appear to be identical. What follows is a summary of the relevant footage. There is no audio.
I have reviewed the respondent’s submissions, which have been transcribed, and which in my view accurately describe the events depicted.
On 21 April 2023, there was an interaction between the applicant and Ms Hossain at the “POS (point of sale) counter”. Both women are seen to gesticulate. At one stage, Ms Hossain holds up her hands and then lowers them in a decisive manner. The conversation continues, with the applicant pointing at Ms Hossain. A customer enters the store and is served by another sales assistant (assumed to be Ms Demasi).
Ms Hossain and the applicant leave the counter. The other sales assistant continues to serve the customer, and three other customers enter the store together.
The footage from the office is taken from above.
Ms Hossain enters holding what appears to be a piece of paper and sits at the chair near the desk.
The applicant then enters the office, holding a mobile phone. She moves towards Ms Hossain and stands close to her, gesticulating with the phone.
The applicant turns, apparently to leave, but it appears that Ms Hossain speaks to her.
The applicant then returns and stands very close to Ms Hossain. The applicant’s back is to the camera. Ms Hossain appears to shrink back in the chair and to be in distress. She holds up her right hand, then raises both arms and appears to turn to the computer.
The applicant continues to stand close to Ms Hossain. Ms Hossain gestures with her left arm. The applicant points her finger at Ms Hossain several times. The applicant appears to make contact with Ms Hossain’s left arm, and she recoils. The applicant continues to stand over her. Ms Hossain raises and moves her right arm, and then both arms, to her head.
There is further conversation, and the applicant continues to point at Ms Hossain while standing close to her.
Ms Hossain then gets up from the chair, with the applicant still pointing her finger at her. She passes the applicant, and there appears to be contact between them as she brushes by. The applicant immediately goes to the desk and picks up the phone.
Ms Hossain is seen leaving the store.

Medical evidence

Rooty Hill Medical & Dental Centre

On 6 October 2015, Dr Sasirekha Wijayakumar recorded that the applicant had a panic attack today. “Past history of panic attacks”. There is a notation of “stress, worries, depressed mood”.
On 21 October 2015, there is a notation regarding session one with psychologist Ms Soraya Motala – “notes confidential”.
On 27 August 2020, Dr Wijayakumar recorded “had panic attack last night and called ambulance”.
On 17 January 2021, Dr Eliza Yu recorded that the applicant had felt shaking inside for three days, only at night. She was “waking up sweaty”. This had happened before and been diagnosed as anxiety. She had had a lump over her mid chest for many years, with no change. She was quite anxious about something going wrong.
On 27 May 2021, Dr Wijayakumar recorded that the applicant had had a panic attack and palpitations that morning.
On 26 July 2021, Dr Tan Nguyen recorded that the applicant had had chest pain and palpitations on and off since August last year, worse for the last few days. He noted “??anxiety”.

Plumpton Medical Centre

On 6 May 2023, Dr Datt recorded that the reason for the visit was “work stress”. The applicant had an argument with a workmate on 21 April 2023. The workmate told her to leave and was pointing on her hand. The applicant pushed her hand away. She then brushed her body.
The applicant “told the boss the whole incident”. Dr Datt recorded the subsequent history of events. The applicant had “poor sleep”, was “getting shakes in chest”, “poor eating”. She was getting emotional and crying. She had no suicidal ideas. She said her chest went tight.
Dr Datt referred the applicant to a psychologist.
Dr Datt recorded on 8 May 2023 that workers compensation had not been accepted yet. The applicant needed to see a psychologist. She noted “stress and anxiety.”
On 11 May 2023, Dr Datt recorded “work stress and anxiety”. The applicant slept better and her appetite was “fine”. She was still crying. She appeared more calm and wanted to try to go to work tomorrow.
On 13 May 2023, Dr Datt recorded that the applicant had a formal letter “in breach of Facebook from work.” She had been accused of breach of confidentiality. She had poor sleep, was crying and sad. She could not do anything at home. She felt they were trying to get rid of her at work.
On 18 May 2023, Dr Datt recorded that the applicant saw the psychologist on Wednesday. She had an appointment with Michael Hill on 22 May 2023. She was not getting better, had trouble sleeping, and was teary. She felt sad.
On 22 May 2023, Dr Tamayo recorded a consistent history. The applicant said her workmate was pointing at her. She pushed away her workmate’s hand “brisky” [sic: assumed to be “briskly”]. The workmate passed very close to her and told her “don’t pushed [sic] me”. It was not true that she hit her workmate, pushed her, or swore at her. The “boss is a Muslim”. The CCTV was reviewed, and her workmate was still working. The other workmate lied.
Dr Tamayo recorded the reason for the visit as post-traumatic stress disorder.
On 7 June 2023, Dr Cecilia Cuaresma recorded that the applicant was “very stress[ed]”. She was terminated today during the meeting. She had no lawyer during the meeting but was waiting for the formal letter of dismissal to pass to her lawyer.
It was suggested (it is not clear whether by the doctor or the applicant) that the applicant’s certificate record that she was not to be contacted directly, but all messages were to be directed to the lawyer.
On 8 June 2023, Dr Tamayo recorded that the applicant was “really distressed. Meeting is only 3 minutes.” The diagnosis was recorded as depression/anxiety.
On 2 July 2023, Dr Tamayo recorded that the applicant’s solicitor told her to see her LMO (local medical officer). She had seen her ex-assistant manager at Mt Druitt on 22 June 2023. She asked how the applicant and her family were. “? trying to get information since they’re reported for unfair dismissal”.
On 20 July 2023, Dr Timmy Chu recorded that stress was ongoing. Stress had been high. It was hard to find motivation.

As regards “reasonableness”, the respondent submitted that to have Ms Hossain view the CCTV footage with the applicant, (who had assaulted her), would have been entirely unreasonable and further traumatised Ms Hossain.
The respondent submitted that the applicant did not submit that it had departed from its internal policies and procedures in respect of discipline.
The respondent disputed that Ms Hossain was the antagonist. It submitted that the applicant’s conduct of assaulting Ms Hossain required it to differentiate between Ms Hossain’s behaviour, which was disputed, and that of the applicant. It was perverse to submit that their behaviour was analogous.
The respondent submitted that the applicant was alleged to have assaulted a co-worker. It was more than reasonable to stand her down while the serious allegation was being investigated. It had a duty of care to provide a safe system of work. The removal of a worker who admitted being triggered and assaulting a co-worker was reasonable action.
The respondent submitted that the applicant’s submissions regarding possible disciplinary action against both workers failed to acknowledge the seriousness of the assault and amounted to “victim blaming” Ms Hossain.
The respondent submitted that the investigation and discipline process allowed ample time for the applicant to present her “version”. She failed to make a formal complaint or grievance against Ms Hossain or require the respondent to discipline Ms Hossain in respect of her alleged behaviour.
The respondent submitted that the complete CCTV footage had been presented in the proceedings, despite the applicant’s unfounded allegations during conciliation that it had been doctored. The CCTV footage was damning in respect of her conduct and the assault. She made little [sic] or no submissions as to the footage misrepresenting the conduct for which she was disciplined.
The respondent disputed that the applicant was given a “short part” of the CCTV footage. If a shorter version was shown, it was reasonable action, as it supported the finding of assault that resulted in the discipline. Showing the applicant an abridged version (which was disputed) did not cause her prejudice.
Regarding the applicant’s submission that, if the respondent obtained statements, they were not presented to her, the respondent submitted that she had failed to issue a notice to produce [sic] for their production, or object to any of the evidence due to their non-production.
The respondent submitted the non-production of the documents was irrelevant as the concessions in the applicant’s statements and the CCTV footage provided ample evidence to support the alleged assault and discipline proceedings.
The respondent disputed that the investigation was a charade or that the applicant was denied procedural fairness or natural justice, repeating its submission regarding the applicant’s concessions and the CCTV footage.
The respondent submitted that a first and final warning was lenient and reasonable, given the assault by the applicant. Its actions were reasonable.
In respect of incapacity, the respondent relied on the evidence of Dr Murphy and Prudence Rehab vocational assessment report dated 3 August 2023. The NTD had approved the vocational options on 2 August 2023.
The respondent referred to the applicant’s submissions that the NTD had recorded no more than his [sic] approval of rehabilitation and occupations that could be considered; and could not reasonably be interpreted as certifying that she had recovered and was fit for work on 2 August 2023.
The respondent submitted that Dr Tamayo had clearly identified the alternative occupations as suitable. The applicant relied on COCs dated 27 August 2023, 1 September 2023 and 27 November 2023. The respondent referred to the decision of President Keating in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde[1] where his Honour said:
“The certificates are of little probative value in the absence of a medical report to explain them or set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 299; 6 DDCR 461.”
[1] [2011] NSWWCCPD 22 at [93].
The respondent submitted that the applicant had been in possession of the vocational assessment and approval from the NTD at least since the Reply was filed on 5 October 2024 [sic: 4 October 2023]. She had not objected to the evidence and had served no report from the NTD clarifying his [sic] opinion on capacity. The NTD had not departed from approval of the vocational options and supported the opinions of Dr Murphy and Prudence Rehab.

Applicant

The applicant submitted that her injury was not wholly or predominantly caused by disciplinary action; and the manner in which the respondent proceeded against her was unreasonable.
The applicant referred to her statement. She submitted it was quite clear there was a total breakdown in the relationship between her and Ms Hossain, which was caused by the manner in which Ms Hossain interfered with the applicant endeavouring to perform her duties.
The applicant submitted that a fatal flaw in the respondent’s case, bearing in mind its onus, was that it endeavoured to run a case in reliance on what she did to Ms Hossain without any statement from Ms Hossain. For that reason, I would accept that all of her evidence regarding Ms Hossain’s behaviour was undisputed and accept everything she said.
The applicant submitted that there was effectively a dysfunctional working relationship. “To add insult to injury”, Ms Hossain removed her as a friend on Facebook and Messenger.
The applicant referred to the events of 21 April 2023, and her evidence about her conversation with Maria. She submitted that if her version was incorrect, something from a witness for the respondent would be expected.
The applicant submitted that the respondent relied on what it regarded as aggression in the back room. It did not have a single word to refer to as being uttered in the back room. We had the applicant’s undisputed version of the manner in which she was spoken to by Ms Hossain. She submitted it would be readily accepted that it was disgracefully unreasonable behaviour, completely unacceptable in the workplace, showing contempt for the norms of the company.
The applicant referred to her version of what occurred in the back office. She submitted there was no reason not to accept what she was saying. There was no audio that contradicted her version, and, crucially, nothing from Ms Hossain contradicting that she was yelling at the applicant to get out. She had no authority over the applicant but was simply expressing abuse.
The applicant referred to having pushed Ms Hossain’s hand away. Ms Hossain then said she had hurt and hit her. She said that she had not. She submitted I had no reason not to accept that evidence; and I might draw inferences from the fact that there was nothing from Ms Hossain, the respondent’s key witness.
The applicant submitted that this incident did not happen in isolation. It happened after interference by Ms Hossain in breach of company policy; aggression and abuse from Ms Hossain; and a breakdown between two employees. She submitted it was manifestly unreasonable and unfair to discipline only one. That is bound to have given her cause to feel aggrieved and would explain the psychological injury that developed as a result of discriminatory behaviour.
The applicant referred to her evidence that she felt very stressed about being accused of hitting, hurting, pushing, and swearing. She was referring to stress about Ms Hossain’s allegations. There were no disciplinary proceedings at this stage. This is the very clear foundation of the stress and ultimate injury. The discipline was essentially adding insult to injury.
The applicant submitted that she was texting and speaking with Mr Sahin constantly about speaking to both her and Ms Hossain and viewing the CCTV with them both. There was no explanation from him as to why he did not sit down with her to discuss the incident. She asked why management did not take responsibility to manage this conflict and endeavour to resolve it?
The applicant submitted that there was no evidence from Mr Safin as to why she and Ms Hossain could not view the footage together. There was very clear bias in that Ms Hossain was allowed to speak with Mr Ghani and Mr Safin about this incident, although the applicant asked Mr Safin first, several times.
The applicant submitted there was an incident of workplace conflict between two employees. It was not reasonable to differentiate between the two. It was an incident that needed to be resolved, but she was basically ignored and marginalised. The version of her antagonist was embraced, and she ended up being disciplined.
The applicant referred to her evidence of the call with Mr Safin on 28 April 2023 when she was essentially suspended and was shocked and stressed about the allegations in the email.
The applicant then referred to the letter dated 27 April 2023, but which was received on 28 April 2023. It referred to her inappropriate behaviour, but she submitted it neglected to consider Ms Hossain’s inappropriate behaviour.
The applicant submitted that had there been an equitable approach, management would have spoken to her as it did to Ms Hossain and got her version. In a fair-minded workplace, this may well have resulted in disciplinary proceedings against them both, if the decision was taken to proceed with discipline, as distinct from a conciliation meeting.
The applicant referred to the allegations against her, which emanated from Ms Hossain. She submitted that it was accepted by the respondent that much of this was false. She referred to the letter dated 3 May 2023. She submitted that, even on the respondent’s version, Ms Hossain was an unreliable witness. There was a conflict between two employees with different interpretations of who was the wrongdoer. She submitted this was a workplace reality that required equitable investigation, not singling out one employee at the instance of an antagonist.
The applicant submitted that her call to EAP indicated that there were psychiatric symptoms requiring treatment that preceded the disciplinary hearing on 1 May 2023.
The applicant submitted that she was shown a portion of the CCTV footage unilaterally determined by those purporting to discipline her at the hearing. An indication that this was all predetermined could be gleaned from Ms Murphy’s statement. The respondent had not given the applicant the statements it had obtained and had failed to tender them. She submitted this gave cause for concern about the manner in which it sought to discharge its onus. It also had not given her the CCTV footage.
The applicant submitted that Ms Murphy had not said she went away to review the evidence and consider the probabilities. She went straight from the applicant giving her version to issuing a first and final warning at the end of the meeting.
The applicant submitted that if she were guilty of something, there needed at least to be a finding of guilt. She asked why she was not issued with a first warning, and how the respondent accounted for conflict involving two employees resulted solely in action against one.
The applicant referred to her incident report. If she was saying she was triggered, why was that not taken into account? She submitted it gave an impression there was no open-minded and valid evaluation of all the evidence.
The applicant submitted that she was falsely accused, which was a source of stress, and which was not discipline. Dr Murphy had not entertained or addressed this. She asked not to be rostered with Ms Hossain and said the prospect of being blamed should anything happen to Ms Hossain’s baby had given her anxiety. That was a stressor that was clearly recorded as at 30 April 2023, before the disciplinary hearing.
The applicant submitted that there was no explanation as to why the respondent withheld the CCTV, “sprung it on her” for the first time and decided how much they would show her.
The applicant submitted that her distress did not relate solely to the disciplinary action, but to the manner in which she was subjected to false allegations at the instance of a fellow employee.
The applicant submitted that the unreasonableness of the process involved both the failure to be equitable in proceeding against both employees and singling out one; and the process itself. She was not spoken to, her attempts to jointly view the material was not accepted. She was not given an opportunity to see the evidence before the meeting and the predetermined outcome, which included both a finding of guilt and an excessive sanction.
The applicant referred to Dr Khan’s evidence that her mental state had been deteriorating for some time before 6 May 2023. He also found that she was incapacitated. She submitted there were also COCs that indicated she had no capacity.
The applicant submitted the evidence of Prudence Rehab regarding her capacity was contrary to the COCs and certainly to the evidence of Dr Khan.
The applicant then referred to her daughter’s statement, which she submitted indicated the way in which the disciplinary hearing was one-sided.
The applicant sought a general order pursuant to s 60 of the 1987 Act, and orders pursuant to ss 36 and 37 from the date of the injury to date and continuing, based on the PIAWE recorded in the respondent’s wages schedule.

SUMMARY

The respondent does not dispute that the applicant has sustained a psychological injury arising out of or in the course of her employment. The respondent maintains that it has a defence to the claim, pursuant to s 11A of the 1987 Act, relying on its action with respect to discipline.
Section 11A of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1)     No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3)     A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)     This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
...
(6)     This section does not extend the definition of ‘injury’ in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)     If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
The respondent bears the onus of establishing a defence pursuant to s 11A of the 1987 Act: Department of Education and Training v Sinclair.[2]
[2] [2005] NSWCA 465; (2005) DDCR 206.

Was the injury wholly or predominantly caused by action taken by or on behalf of the respondent?

“Wholly or predominantly” has been held to mean “mainly or principally caused” – Ponnan v George Weston Foods Ltd.[3]
[3] [2007] NSWWCCPD 92 (Ponnan).
Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd.[4] In the same case, he dealt with the issue of causation, on the basis that Kooragang Cement Pty Ltd v Bates[5] applied. Roche DP said, “causation is a question of fact to be determined by the evidence in each case.”
[4] [2008] NSWWCCPD 96.
[5] (1994) 35 NSWLR 452; 10 NSWCCR 796.
The Court of Appeal recently considered the application of a “common sense” test of causation in Fisher v Nonconformist Pty Ltd.[6]
[6] [2024] NSWCA 32 (Fisher).
The appellants in Fisher argued that invocations of “common sense” were inconsistent with the statutory requirement in s 9A of the 1987 Act, relying on what French CJ, Bell, Gageler, Keane and Nettle JJ said in Comcare v Martin.[7]
[7] [2016] HCA 43; (2016) 258 CLR 467.
Kirk JA (Meagher JA and Simpson JA agreeing) said [at 106]:
“To begin with, the High Court here did not suggest that any invocation of common sense in relation to issues of causation involved legal error. Indeed, in Hunt & Hunt[8], three members of the High Court – including French CJ, who was in Martin – said the following: ‘Causation is largely a question of fact, to be approached by applying common sense to the facts of the particular case’ (at [43]). Whilst that judgment was three years prior to Martin, it was well after the authority cited in Martin in the passage just quoted...”
[8] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613.
In my view the evidence establishes that the applicant’s injury was wholly or predominantly caused by the respondent’s action with respect to discipline.
The applicant’s evidence in her statement dated 6 June 2023 was that she had never experienced any conditions related to anxiety or depression before her employment with the respondent, or subsequent to that employment, before the date of the injury. (My emphasis). She did not seek EAP assistance or medical treatment until she was advised of the allegations against her. The respondent’s submissions referred to the COCs.
The applicant stated that there was “toxic behaviour” in the workplace; and submitted that the matter involved a background of conflict between her and Ms Hossain. I accept that there had been one earlier instance of conflict between BTY and Ms Hossain, although Mr Safin’s evidence was that they had worked well after that incident. On the applicant’s evidence, she had also had issues with Aristi, Fakri, Mary, and Maria.
I also accept that the applicant may have complained about her colleagues to her family, as her daughter stated, because she obviously had issues with many of them, mainly related, it would seem, to her belief that they were “stealing” her sales.
It appears that the applicant was resentful towards Ms Hossain. For example, she referred to Ms Hossain’s “entitlement” as she was allowed to rest in the office and eat whenever she liked; what she perceived as special treatment because Ms Hossain was pregnant; and the roster being changed to suit Ms Hossain. She believed Ms Hossain was treated favourably because she and Mr Safin were the same nationality.
The fact that the applicant had issues with many of her colleagues does not mean that she had developed a psychological injury as a result.
The applicant said nothing about the “toxic behaviour” in either her incident report or her first statement. It was not until her statement dated 8 September 2023 that she referred to other matters that she claimed had affected her psychologically.

The applicant’s evidence was that she was shocked and stressed about the allegations; was then and still was truly emotionally distressed from the false allegations; was crying and devastated about being suspended; and on 6 May 2023, broke down crying at work because of all the pressure from the investigation, the lies Ani had spread, and feeling she was being judged. She had been seeking EAP since the day the “false allegation letter” was emailed.
“Action with respect to discipline” is capable of extending to the entire process, including the course of an investigation.[9]
[9] Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie).
There is no evidence that the applicant had a psychological condition that was in any way related to her employment before the events that led to the respondent taking disciplinary action against her.
As the respondent submitted, the applicant reported psychological symptoms to her GP on several occasions between 2015 and 2021, and on one occasion attended hospital. There is no reference in the GPs’ records to any work-related complaint until after the incident on 21 April 2023.
Whilst I am mindful of the caution urged in such cases as Mason v Demasi[10] against reliance on what is recorded in clinical records, the weight of the evidence in this matter in my view establishes that the applicant’s injury was wholly or predominantly caused by the respondent’s action with respect to discipline.
[10] [2009] NSWCA 227.
In Hamad v Q Catering Limited[11] Deputy President Snell said (at [88]):
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[11] [2017] NSWWCCPD 6.
In this case, the respondent relied on the evidence of Dr Murphy. Dr Murphy opined that the obvious contributing factor to the recent collapse of the applicant’s mental health was the disciplinary action from 27 April 2023 to 11 May 2023. He noted the GPs’ records clearly showed that the applicant’s mental health deteriorated suddenly in early 2023.
Dr Khan did not agree with Dr Murphy. He opined that the applicant’s mental state had been deteriorating for some time before 21 April 2023. He based his opinion on her account and maintained it after reviewing the clinical records.
I prefer Dr Murphy’s opinion. It is consistent not only with the applicant’s evidence, but with the contemporaneous medical records. The applicant may well have been a disgruntled employee, who made complaints to her employer and family, before the interaction with Ms Hossain precipitated the disciplinary action (and her evidence certainly suggested that she was dissatisfied with numerous matters), but I do not accept that she had a psychological condition as a result.

Were the respondent’s actions reasonable?

In Irwin v Director-General of Education,[12] Geraghty J said:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of the employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[12] NSWCC 14068/97, 18 June 1998.

In Heggie, Sackville AJA said (at [59]):
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (Emphasis in original).
The applicant relies on date of injury of 6 May 2023. She did not submit that the second disciplinary matter was causative of her injury, as she had by that time already sustained a psychological injury.
The applicant has relied on evidence about Ms Hossain’s actions, how she was “triggered”, and her belief (and that of her daughter) that the CCTV footage of the interaction between her and Ms Hossain was somehow edited or tampered with. I do not accept that that occurred.
The applicant also appeared to believe that what occurred between her and Ms Hossain while the customers were being served would somehow, if it were viewed and taken into account, explain or vindicate her behaviour. I do not agree.
It is also not the case that the interaction between the applicant and Ms Hossain in the store (at POS) was not shown on the CCTV. It was, and it then showed Ms Hossain withdrawing to the back room.
It may be accepted that there was a disagreement between the applicant and Ms Hossain over who was entitled to the benefit of the sale, if any, on 21 April 2023, and it was not the first time this had happened. In my view, what is of importance in determining whether the respondent’s actions were reasonable is what happened in the office after this disagreement, and the actions taken by the respondent as a result.
The applicant submitted that a fatal flaw in the respondent’s case was the absence of any statement from Ms Hossain. In fact, there is evidence of what Ms Hossain is said to have told Mr Rose and Mr Ghani. Of more importance, however, is the fact that there is CCTV footage of the interaction between the applicant and Ms Hossain in the back room of the store.
As I have noted above, I have reviewed the CCTV footage, and I agree with the respondent’s submissions as to what it depicted, which I have discussed above. It is true that there is no audio, but in my view, it is clear that the applicant was the aggressor, and Ms Hossain remained seated at the computer and appeared to be fearful and shrinking from the applicant.
The applicant has admitted pushing Ms Hossain’s hand away, “in self-defence”, although there is no evidence that Ms Hossain was attacking the applicant or that she needed to defend herself. In fact, Ms Hossain had removed herself from the front of the store and withdrawn from the altercation with the applicant, who followed her to the back of the store. Even if Ms Hossain did tell BTY to get out, the applicant’s response was entirely disproportionate.
While the applicant denied having called Ms Hossain a “fucking bitch”, she conceded that she had said she did not “fucking” hit or “fucking” hurt Ms Hossain, and “what the fuck?” She was clearly repeatedly using inappropriate language towards Ms Hossain.
The respondent, having become aware of the altercation was required to investigate it. It acted promptly to do so. I refer to Mr Safin’s evidence. In my view, it was reasonable for the respondent to remove the applicant from the store, in circumstances where Ms Hossain had said she was afraid to work with her, and the applicant said she could not work with Ms Hossain.
The applicant’s complaints about the investigation appear to centre to a large extent on her belief that she should somehow have had control over how it was conducted, the respondent did not take into account that she was “triggered” and “provoked” by Ms Hossain, and Ms Hossain should also have been disciplined.
I accept the respondent’s submission that it would not have been reasonable for its management to view the CCTV footage in the presence of both the applicant and Ms Hossain. Ms Hossain had said she was afraid of the applicant and refused to take part in mediation with her. It would have been unreasonable to require her to view the footage in the presence of BTY.
It was in my view reasonable that the applicant was told by Mr Safin not to contact Mr Ghani over the weekend before the meeting on 1 May 2023. Not content with this, the applicant located Mr Ghani’s contact details and contacted him anyway. He responded in an appropriate manner, although he would not necessarily have been expected to do so on the weekend.
The applicant was provided with details in writing of the matters to be addressed at the meeting on 1 May 2023, and encouraged to bring a support person, which she did.
The meeting on 1 May 2023 was attended by an HR representative, at the applicant’s request. I do not believe it would in any event have been unreasonable to hold the meeting without Ms Murphy, but the respondent acceded to the applicant’s request.
The applicant was given the opportunity to respond to the allegations. She did so at length. She had previously prepared her “full incident report”.
Following the meeting, the applicant was given a “first and final warning”, which she did not accept. She was offered and refused a transfer to another store.
The applicant then asked for the warning letter to be reviewed, which was done by the Group Human Resources Manager.
The sequence of events was therefore that the applicant displayed aggressive behaviour and used abusive language to a colleague, who was visibly shaken; admitted pushing her colleague’s hand (and I have referred above to what was shown on the CCTV footage); was provided with and took the opportunity to respond to the allegations against her, with a support person and HR representative; was issued with a first and final warning; offered a transfer to another store; requested that the warning be reviewed; and the review by a senior employee took place.
In my view, the respondent’s action in investigating this serious incident was reasonable, carried out fairly, and took into account the applicant’s rights and the object of the employment. It was appropriate in the circumstances that the applicant was issued with a first and final warning as a result of her actions.
The applicant’s evidence that there was some sort of conspiracy to terminate her employment is not borne out by the result of this investigation. The respondent did not terminate her employment then, but only after a subsequent alleged breach of confidentiality.
The applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline.
The respondent’s action with respect to discipline was reasonable.
There will accordingly be an award for the respondent.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 126

14 March 2024