Chowdhury v ISS Security Pty Ltd
[2025] WADC 65
•26 SEPTEMBER 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CHOWDHURY -v- ISS SECURITY PTY LTD [2025] WADC 65
CORAM: CURWOOD DCJ
HEARD: 3, 18 SEPTEMBER 2024, 9 APRIL 2025, WRITTEN SUBMISSIONS 23 APRIL & 30 APRIL 2025
DELIVERED : 26 SEPTEMBER 2025
FILE NO/S: APP 35 of 2024
BETWEEN: MOINUL CHOWDHURY
Appellant
AND
ISS SECURITY PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR WALLBRIDGE
File Number : A116286
Catchwords:
Appeal - Workers' compensation - Whether appellant suffered an 'injury' within the meaning of s 5 of the Workers' Compensation and Injury Management Act 1981 (WA) - Expert evidence - Credibility findings made by arbitrator - Acceptance of expert evidence - Whether arbitrator made error of law in failing to find that the appellant's psychiatric disease was caused by his employment -
Legislation:
Workers' Compensation Act 1987 (NSW)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Act 2023 (WA)
Result:
Leave to appeal granted on ground 2
Leave to appeal refused on grounds 1, 3 - 14
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr C C Rimmer |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Anderson v Mercy Hospital Mount Lawley [2020] WASCA 42
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Department of Education v Azmitia [2014] WADC 85
Federal Broom Co Pty Ltd v Semlitch (1962) 110 CLR 626
Fisher v Nonconformist Pty Ltd [2024] NSWCA 32
Fox v Percy (2003) 214 CLR 118
Kipoi Holdings Mauritius Ltd v Robert Michael Kirman and Robert Conry Brauer as joint and several administrators of Tiger Resources Ltd (subject to Deed of Company Arrangement) [No 4] [2024] WASCA 145
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Marks v Coles Supermarkets [2021] WASCA 176
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Pilbara Iron Company (Services) Pty Ltd v Suleski [2017] WADC 114
Skinner v Broadbent [2006] WASCA 2
St Mary's School v Askwith [2011] VSCA 90; (2011) 206 IR 414
State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249
Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122
CURWOOD DCJ:
Introduction and overview
The appellant, Moinul Chowdhury was employed by the respondent, ISS Facility Services Australia Pty Ltd (ISS), as an 'aviation protection officer' at Perth Airport from 2016 until May 2022. Before 2016 he worked for ISS at Darwin airport. He moved to Perth looking for further employment opportunities with ISS after ISS lost its contract for services at Darwin airport.
Mr Chowdhury claimed he suffered physical injury and a stress‑related mental disorder in the course of his employment with ISS. On 6 May 2022 Mr Chowdhury submitted to ISS a workers' compensation claim form in which he sought weekly payments of compensation for a total incapacity to work, pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), with effect from 29 April 2022.
ISS disputed Mr Chowdhury's claim, and it proceeded to an arbitration hearing before Mr M Wallbridge, an arbitrator of the Workers Compensation Arbitration Service appointed under the Act. Mr Chowdhury represented himself in the arbitration hearing (and in this appeal). The arbitrator dismissed Mr Chowdhury's claim.
Mr Chowdhury's claim before the arbitrator was that he was defamed, bullied, harassed and discriminated against during his employment with ISS.[1] Mr Chowdhury identified 14 separate incidents as workplace stressors which caused him to contract a stress‑related mental disorder, or psychiatric disease, and secondly, musculoskeletal disorders.[2] The 14 incidents identified by Mr Chowdhury informed the issues for determination at the arbitration hearing.
[1] Arbitrator's reasons for decision dated 22 April 2024 [40] (Reasons).
[2] Reasons [2]; Appeal Book filed 16 August 2024, pages 3 - 4.
The arbitrator stated that it was not in dispute that Mr Chowdhury contracted a mental disorder or psychiatric disease (which I will sometimes refer to in these reasons as the (or Mr Chowdhury's) 'condition' or 'mental health condition'). The arbitrator found that Mr Chowdhury's mental health condition was a new condition and consequently, not a recurrence, aggravation or acceleration of any pre‑existing disease.[3] In making the finding that Mr Chowdhury had contracted the condition, the arbitrator relied upon and accepted medical evidence from Dr Akula (Mr Chowdhury's GP) and Dr Madadeniya and Dr Cheng (both consultant psychiatrists).[4]
[3] Reasons [18].
[4] Reasons [18], [22].
After accepting the existence of Mr Chowdhury's mental health condition, the arbitrator framed the issue which he had to decide as being whether Mr Chowdhury's employment with ISS contributed to a significant degree to the contraction of the disease.[5]
[5] Reasons [23].
The arbitrator examined the evidence called by the parties on the 14 incidents which were at issue in the arbitration. The arbitrator, in going through each specific incident, found ISS had not engaged in conduct comprising bullying, harassment, intimidation or discrimination as Mr Chowdhury had alleged (or at all). Further, the various incidents relied upon by Mr Chowdhury in support of his claim did not occur in the way that Mr Chowdhury had described those incidents in his workers' compensation application or in the way he gave evidence about them at the hearing.
After assessing the various incidents, the arbitrator found Mr Chowdhury was not a credible witness, that he had a tendency to exaggerate the significance of ordinary workplace events, misstate events or documents and inflate (or exaggerate) the significance of incidents in an attempt to bolster his claim and attribute ailments he had to his employment without any factual basis.[6] The arbitrator also noted that there was a lack of contemporaneous records from his general practitioner supporting his claims of psychological impact, little or no objective evidence of workplace stress prior to him ceasing work in March 2022 and no objective evidence supporting claims about the various incidents and their effect on him.[7]
[6] See Reasons generally [35], [55], [57], [69], [84] - [85], [96], [101].
[7] See Reasons generally [31], [32], [72] - [73], [85], [88], [129] - [131].
Because the arbitrator did not accept Mr Chowdhury's evidence on the 14 incidents which were at issue in the arbitration, he held that Mr Chowdhury had not proved the factual foundation upon which medical practitioners gave opinions of the cause of his condition being employment related. Put another way, because the arbitrator did not accept Mr Chowdhury's evidence on the various incidents upon which he based his claim, regardless of his subjective perception and reaction, the objective facts of the various incidents remained unproven such that the arbitrator was not persuaded by Mr Chowdhury on the balance of probabilities that his employment with ISS contributed to the contraction of his condition to a significant degree.[8]
[8] Reasons [35]. When referring to Mr Chowdhury's subjective perception, the arbitrator footnoted references to the cases of Department of Education v Azmitia [2014] WADC 85 [16] and Anderson v Mercy Hospital Mount Lawley [2020] WASCA 42 [41] - [42].
As a consequence of not accepting Mr Chowdhury's evidence, the arbitrator held that Mr Chowdhury failed to prove, on the balance of probabilities, that his mental health condition was contributed to 'a significant degree' by his employment as required under s 5(1)(c) of the Act. The arbitrator noted that regardless of his subjective perception and reaction 'the objective facts remain unproven and he cannot succeed in proving his case on the balance of probabilities'.[9] His application was therefore dismissed, and he was not entitled to weekly payments of compensation or payment of his reasonable medical or other expenses.
[9] Reasons [35].
Mr Chowdhury commenced this appeal on 17 May 2024. At the time that the appeal was heard, the Act had been repealed and replaced by the Workers Compensation and Injury Management Act 2023 (WA) (the 2023 Act). In this appeal, Mr Chowdhury relies on 14 separate grounds of appeal. The arbitrator's credibility findings loom large over the determination of Mr Chowdhury's appeal grounds. Most of the appeal grounds were developed to challenge the arbitrator's factual findings, and thereby, they do not raise questions of law. However, one of the appeal grounds, ground 2, contends that the arbitrator made an error of law in not accepting, or giving weight to, a medical opinion of Dr Victor Cheng, a psychiatrist engaged by ISS. Dr Cheng's opinion was that Mr Chowdhury's mental health condition was significantly contributed to by his employment.
For the reasons that follow, I consider ground 2 gives rise to a question of law and leave to appeal should be granted for ground 2. However, for the reasons I set out in [82] - [92] below, no weight can be attached to Dr Cheng's opinion that Mr Chowdhury's mental health condition was significantly contributed to by his employment because the arbitrator did not accept Mr Chowdhury's evidence about the existence of rumours spreading about him in the workplace. The arbitrator expressly found that Mr Chowdhury had not proved on the balance of probabilities that any defamatory rumours were being spread about Mr Chowdhury as he had alleged. Accordingly, ground 2 should be dismissed.
The other 13 grounds fall into two categories: first, seeking to challenge factual findings, or, second, raising a false issue of whether the arbitrator should have considered the terms of s 5(4) of the Act.[10] Section 5(4) excludes certain psychological and psychiatric conditions from the definition of 'injury'. Section 5(4) has no application to the dispute. That provision would only have been relevant if the arbitrator had found that Mr Chowdhury's employment with ISS did contribute to a significant degree to the contraction of his injury (being his mental health condition) and if ISS had then sought to argue that his condition was excluded by one of the parts of s 5(4). Because of the finding that his employment with ISS did not contribute to a significant degree to the contraction of the mental health condition, the provisions of s 5(4) were irrelevant to the case. Accordingly, for the reasons that follow, leave to appeal is refused for all of the grounds of appeal save for ground 2. Before turning to an analysis of the various grounds of appeal I will summarise the arbitrator's reasons.
[10] See [43] below.
The arbitrator's Reasons
The arbitrator framed the essential question for his determination as being, did Mr Chowdhury contract a disease in the course of his employment, to which the employment was a contributing factor, and had contributed to a significant degree?[11]
[11] Reasons [5].
As I have already noted, the arbitrator resolved this question, which has two aspects to it, against Mr Chowdhury. He found Mr Chowdhury had contracted a disease, being the mental health condition, but held that Mr Chowdhury had not proved that his employment contributed, and contributed to a significant degree, to the contraction of his disease. For that reason, Mr Chowdhury's claim failed.
The arbitrator found that the factual basis of Mr Chowdhury's claim was that he worked as an aviation protection officer with ISS at Perth Airport from December 2016 and that in March 2022 he claimed that he was defamed by rumours in the workplace that greatly distressed him. Further, that he described this as 'the last straw' and that this was the precipitating event that caused his mental health condition.
The arbitrator said that the factual basis of Mr Chowdhury's claim was that he was defamed, bullied, harassed, intimidated and discriminated against during his employment with ISS.[12] On the basis that none of these words were defined in the Act, the arbitrator outlined the ordinary meaning of these words by reference to dictionary definitions.[13]
[12] Reasons [41] - [45].
[13] Reasons [40] - [46].
The arbitrator noted that on or about 9 March 2022 Mr Chowdhury informed ISS that he required stress leave. Following this, representatives of ISS met with him to determine what was causing him stress and Mr Chowdhury explained that defamatory rumours were being spread about him in the workplace. Further, that he had not personally heard these rumours, but colleagues had told him about them. Mr Chowdhury said that he had suspicions as to who was spreading these rumours and named a few people. At the conclusion of the meeting Mr Chowdhury was asked to provide more detail so that ISS could properly investigate his allegations.[14]
[14] Reasons [49].
Subsequently, Mr Chowdhury provided ISS, in the course of several emails, what he described as 'useful information' that would assist with its investigation. The arbitrator said that this information consisted of a series of grievances Mr Chowdhury had with ISS dating back to the beginning of his employment at Perth Airport in December 2016. The arbitrator noted Mr Chowdhury 'had never raised most of these grievances previously'.[15]
[15] Reasons [50].
The arbitrator then dealt with these matters individually in his Reasons, being events described by Mr Chowdhury by reference to the following short descriptions:
1.A dispute with ISS about Mr Chowdhury's relocation from Darwin and ISS's failure to contribute to relocation costs which caused financial stress.
2.Mr Chowdhury's complaints in June 2017 that he was given a shorter meal break than other employees.
3.A disagreement Mr Chowdhury had with a work colleague about a passenger standing in a wrong access position when explosive trace detection searches were being undertaken.
4.Harsh and unreasonable discipline which occurred as a consequence of an incident on 17 December 2017 when Mr Chowdhury and another employee were disciplined as a consequence of a knife being undetected in security screening of a passenger.
5.Back pain and leg cramps that Mr Chowdhury suffered on or around 9 March 2018.
6.An incident in which the appellant requested an ambulance stop at a gate and bullying and harassment with respect to that request by a supervisor, Mr Richardson.
7.Harsh treatment in the form of an email sent by ISS on 7 August 2018 about absenteeism when Mr Chowdhury had been diagnosed as having pneumonia or bronchitis.
8.An incident on 29 December 2019 where Mr Chowdhury had to pat down more than 100 people because screening machines were faulty.
9.Discrimination that Mr Chowdhury contended occurred when he was consistently rostered to busier gates than other employees and what he described as dangerous rosters.
10.What Mr Chowdhury identified as a promotion whereby he was promoted to a 'two IC position' and then what he described as a demotion back to his previous position and level which occurred between August and November 2021.
11.Mr Chowdhury being stood down for a delay in having a COVID‑19 vaccination.
12.Mr Chowdhury's complaints about delays in approving his annual leave.
13.Mr Chowdhury complaining on 26 February 2022 that he was given conflicting information about whether he should attend work because he believed he was a close contact of a person with COVID.
14.Workplace rumours being spread about him which he requested his management to investigate. It was these rumours that led to him taking stress leave and ultimately not returning to work after annual leave.
As I have already noted at [8] - [9] above, the arbitrator considered Mr Chowdhury's allegations with respect to each of the 14 incidents. He found that Mr Chowdhury's evidence should not be accepted.[16]
[16] See, for example, Reasons [56] - [57].
Incident 14 - Workplace rumours (March 2022)
Because the final incident outlined by Mr Chowdhury brings into consideration all of the earlier incidents, I will commence by describing the arbitrator's Reasons on incident 14. On 9 March 2022 Mr Chowdhury, after he said that he heard from one of his colleagues that there were rumours being spread about him in the workplace, told ISS he needed to take stress leave.[17] Mr Chowdhury claimed that some of his colleagues had spread defamatory rumours about him, including that he had performed explosive trace detection on an ambulance that an Australian Federal Police (AFP) officer threatened to arrest him and that he collapsed during pat downs and was taken to hospital.
[17] Reasons [49].
On 18 March 2022, Mr Chowdhury said another colleague told him about these same rumours. Mr Chowdhury said he realised he was 'being targeted by a group of his co‑workers' who were 'conspiring against him and working as a syndicate'.[18] He believed the colleague he had complained about on 11 September 2017, and who was working on the X‑ray machine on 17 September 2017, had 'something to do with the rumours'.[19]
[18] Reasons [114].
[19] Reasons [114].
On or about 20 March 2022, Mr Chowdhury became 'stressed and depressed about those rumours and could not sleep the previous two nights'. He claimed this trauma caused him 'stress, anxiety, depression, shame, guilt, and a staggering sense of injustice' and was 'the last straw that left him incapacitated for work'.[20] On 20 March 2022 Mr Chowdhury sent a text message to his manager requesting that ISS book him off on stress leave for the next day.
[20] Reasons [115].
The next day, 21 March 2022, Mr Chowdhury sent a grievance letter to Ms Nagpal (ISS people and cultural manager) and a Ms Simpson via email. That letter explained the background of his stress leave and requested an investigation into the rumours being spread that he said amounted to slander. The letter stated he wanted the rumours investigated immediately to find out who the staff members were who had engaged in defamation and jeopardised his reputation and to bring them immediately under disciplinary actions. The letter concluded 'until the investigation is complete and culprits are found, I will remain in stress leave'.[21]
[21] Appeal Book, page 120.
Ms Nagpal's evidence was that Mr Chowdhury's letter was the first occasion she had heard anything about his complaints. Her evidence was that she and Ms Simpson acted straight away and asked Mr Chowdhury to come into the office to discuss the claims. They asked him if he knew who was spreading the rumours, and he provided some names. They also asked him what resolution he wanted. Mr Chowdhury advised he wanted an investigation and for the persons responsible to be punished for what they had done, saying that they had defamed him.
The witnesses who testified before the arbitrator, being ISS employees and managers, Ms Marisa Goss (people and culture general manager), Ms Nagpal, Mr Nazir Siddique (a security duty manager), Mr Timothy Richardson (an access control supervisor) and Mr Singh (a supervisor) gave evidence that they had not heard any rumours about Mr Chowdhury in the workplace. The arbitrator said that no witness apart from Mr Chowdhury gave evidence about having heard the rumours he complained of. Further, the arbitrator held that Mr Chowdhury's evidence about the rumours was hearsay and there was no direct evidence from any witness about what the rumours were or who was spreading them.[22]
[22] Reasons [125].
The arbitrator referred to two emails Mr Chowdhury sent on 24 and 28 March 2022 entitled 'useful information'. Attached to those emails were details of the workplace stressors detailed in the earlier incidents which the arbitrator set out and dealt with in his Reasons.
Mr Chowdhury took annual leave from 8 April 2022. He was due to return to work on 9 May 2022. On 4 May 2022, Ms Nagpal emailed Mr Chowdhury querying the extensive list of the workplace grievances that were unrelated to his original complaint in the interview about the rumours. Ms Nagpal stated in the email it would take time to investigate all the matters he had raised and she needed more clarity from Mr Chowdhury about what exactly he wanted them to investigate as part of his stress‑related grievance. Ms Nagpal concluded the email:[23]
Whilst we are investigating your alleged concerns, we do require you to return to work. To mitigate any conflicts, we have amended your working roster to be at T4 EIA points 4 on 4 off commencing from 9 May 2022 which is your return back after annual leave.
Your Kronos will also be adjusted accordingly.
I will communicate with you if I require further information for the investigation.
Thanks
[23] Appeal Book, page 221.
Mr Chowdhury said he was frustrated and depressed when he read this email and shocked and panicked when he thought about a return to 'that unhealthy work environment'. By email on 5 May 2022, Mr Chowdhury replied:[24]
First one was the defamation issues, I was targeted by a group of co‑workers and supervisors.
Second one was the supporting document, in which I gave you the clues in different situations and scenarios, that could be a valuable for the investigation.
Now I am going to attach the third document, which is related to the management. I believe, this document would be extremely valuable and helpful for this investigation as well.
Please note that after going through the medical assessment, my GP declared 'no capacity for work' from 29/04/2022 to 28/05/2022.
The ongoing bullying, harassment, intimidation, defamation and discrimination by a group of co-workers, supervisors and management, which have had a serious mental impact on me and ultimately has developed Musculoskeletal (MSK) disorders (MSD). The result of this disease has been impacting severely on me not only in psychologically (i.e., stress, depression, anxiety etc.) but also in physically, such as: ongoing headache, foot pain, arthritis, backpain.
After careful reading of the attached document and the previous ones, I believe that it would be comprehensible for you to understand that I am totally incapable to return to work under these circumstances.
[24] Appeal Book, page 221.
The arbitrator also observed that there were discrepancies between the alleged rumours and the actual events Mr Chowdhury gave evidence of. The arbitrator held that there was no basis to conclude that any rumours, even if these matters were spoken of and discussed, objectively attacked his good name or reputation or were slanderous.[25]
[25] Reasons [129].
The arbitrator also noted there was no contemporaneous medical evidence by Mr Chowdhury's GP that mentioned workplace rumours as a stressor of his psychiatric disorder. Rather, Mr Chowdhury's GP, Dr Akula, reported Mr Chowdhury as being stressed with poor sleep, low self‑esteem, normal mood, anxiety, stress at work, irritability and irrational fears.[26]
[26] Appeal Book, pages 378 - 381.
The arbitrator concluded with respect to the ISS investigation into Mr Chowdhury's complaint about rumours being spread about him that:[27]
131Mr Chowdhury has also not persuaded me that the delay in investigating his workplace stressors, or the rumours was unreasonable such that it amounted to bullying, harassment, intimidation, or discrimination. This is because Mr Choudhury [sic] was told the investigation would take time, he provided additional historical information about many unrelated matters compared to his original allegation to ISS about the rumours and his stress. Consequently, this made the investigation more complex.
134On the whole of the evidence, I am not persuaded by Mr Chowdhury that ISS acted unreasonably in wanting to personally clarify exactly what he wanted from the investigation upon his return from leave given his own attempts at assisting the investigation had the opposite effect and did not assist in clarifying the issues.
[27] Reasons [131] and [134].
Principles relating to granting leave to appeal
Before turning to the grounds of appeal, I remind myself of the relevant principles which apply to appeals from decisions of arbitrators under the Act and its successor, the 2023 Act.
Mr Chowdhury requires leave to appeal against the arbitrator's decision. The District Court must not grant leave to appeal unless a question of law is involved.[28] An appeal involves 'a question of law' where either an error of law, or an error of mixed fact and law is alleged by an appellant.[29]
[28] Section 391(2) of the 2023 Act.
[29] See for example, Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] (Paridis).
To the extent that a question of law is involved, an error arising from the question of law must be material to the decision in the sense that the arbitrator's decision would have been, or might have been, different if the error had not been made.[30] It is not sufficient for an appellant to satisfy the court that a decision other than that made by the arbitrator is correct and preferrable. Some material error of fact or law, or some other miscarriage of justice, must be established. The determination of whether an error or some other miscarriage of justice is established is made on the material before the arbitrator. Once an error or a miscarriage of justice is established then the appellate court, if it is in a position to do so, substitutes its own decision for that of the arbitrator.[31]
[30] Marks v Coles Supermarkets [2021] WASCA 176 [6], [134], [136], [163] (Marks); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ); BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15].
[31] Marks [131].
Apart from the requirement that the appeal relates to a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. Relevant matters include, but are not limited to, whether the decision was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed.[32]
[32] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46]; See also Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [19] ‑ [20].
Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it. An appellant may not simply invite the court to just ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator.[33]
[33] Catholic Education Office of WA v Granitto [2012] WASCA 266 [56] ‑ [57].
If a ground of appeal properly analysed does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position.[34]
[34] Paridis [53].
No error of law, or error of mixed fact and law, arises simply because an arbitrator prefers one version of events over another.[35] Put another way, there is no error of law simply in making a wrong finding of fact.[36]
[35] BHP Billiton Iron Ore Pty Ltd v Brady [5].
[36] Waterford v The Commonwealth of Australia (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (356).
An error in the assessment of weight given to expert medical evidence does not involve an error of law and there is no error that involves a question of law merely because the arbitrator makes a finding of fact wrongfully or on a doubtful basis.[37] Further, where an arbitrator has made findings based on credibility, generally speaking the finding cannot be challenged unless an appellant establishes that there were 'incontrovertible facts or uncontested testimony' to the contrary or, more rarely, where the finding was 'glaringly improbable' or 'contrary to compelling inferences'.[38]
[37] Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21].
[38] Fox v Percy (2003) 214 CLR 118 [28] ‑ [29].
Before I turn to an analysis of the appeal grounds, I will set out the statutory provisions to the extent that they are relevant to the grounds of appeal and some relevant parts of the arbitrator's Reasons.
Legislative provisions
By s 18 of the Act, if a worker sustains an 'injury', the employer shall, subject to the Act, be liable to pay compensation to the worker. 'Injury' is defined in s 5. Where the injury is a disease caused by stress, certain exclusions apply to the extent that the injury is caused by those exclusions. Relevantly, s 5 of the Act defines 'injury' and the exclusions for injury as follows:
injury means -
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
…
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;
…
(4)For purposes of the definition of injury, the matters are as follows -
(a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b)the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c)the worker's expectation of -
(i)a matter; or
(ii)a decision by the employer in relation to a matter,
referred to in paragraph (a) or (b).
(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account ‑
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.
Mr Chowdhury's grounds of appeal
Mr Chowdhury raises 14 grounds of appeal. Each of the grounds expressly raises an error of law and couples with it an error of fact. I remind myself of what I have already set out that if a ground of appeal properly analysed does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position and convert a factual error to an error of law.
Ground 1
Ground 1 contends the arbitrator made an error of law by misdirecting himself as to the correct legal test of whether an 'injury' had occurred within the definition of the Act because he did not take into account the terms of s 5(4) and 'matters such as transfer, discipline, demotion and instead labelled all matters by the terms bullying, harassment, intimidation and discrimination' and whether ISS's actions were 'unreasonable and harsh'.
The question of whether the arbitrator applied the correct test is a question of law. I consider the arbitrator applied the correct test. The arbitrator determined that Mr Chowdhury's mental health condition was a disease which would be an 'injury' within the meaning of the Act, providing Mr Chowdhury proved that his employment was a contributing factor to the contraction or onset of the condition.[39] The arbitrator set out the legal principles that a worker had the onus of proving to the requisite standard that their employment was a contributing factor and contributed to a significant degree to the contraction of the disease. In that respect the arbitrator was referring to the definition of 'injury' which I have set out above. The arbitrator then considered the requirements of s 5(5) of the Act.
[39] See Reasons [22] - [34].
The arbitrator ultimately found that Mr Chowdhury failed to prove the objective facts comprising his versions of the incidents upon which he based his claim. Namely, they were the objective facts upon which his claim was brought and those facts were not proved on the balance of probabilities. Accordingly, having reviewed all of that evidence the arbitrator was not persuaded that Mr Chowdhury had discharged the onus that his employment had contributed and contributed to a significant degree to the contraction of his disease. This also required a consideration of the medical evidence which I discuss in ground 2.
Mr Chowdhury's use of the words 'unreasonable and harsh' and references to dismissal, retrenchment, demotion, discipline, transfer or redeployment do not assist him in the determination of this appeal. The words 'unreasonable and harsh', when used in the context of conduct of an employer, only apply when considering factors of exclusion under s 5(4). Namely, where a stress‑related disease has been caused by the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment. Mr Chowdhury's claim failed, not because of any consideration or lack of consideration as to whether ISS's actions were 'unreasonable and harsh' but because the arbitrator found that Mr Chowdhury's employment with ISS was not a contributing factor to a significant degree to him contracting the stress‑related disease which the arbitrator found that he suffered from.
Although ground 1 on its face raises a question of law, in my view, it has no arguable basis. It has no arguable basis because Mr Chowdhury presented his case relying on a number of incidents in the workplace which he says caused his stress. The arbitrator found those incidents did not occur or did not occur in the way in which Mr Chowdhury alleged.
The arbitrator ultimately found that the factual basis of Mr Chowdhury's claim that he was defamed, bullied, harassed, intimidated and discriminated against during his employment was not made out. Further, that occasional differences of opinion, problems and conflicts in working relationship can happen in a workplace but not constitute bullying, harassment, intimidation or discrimination. Similarly, reasonable management action carried out in a fair way is not bullying, harassment, intimidation or discrimination and that all employers have a right to direct and control how work is done, and that managers and supervisors have a legitimate responsibility to monitor work and practices and give objective feedback on performance.[40] Leave to appeal on ground 1 should be refused.
[40] Reasons [48].
Ground 2
Ground 2 said, in part, as follows:
1.The learned arbitrator erred in fact and law by asserting that he is not satisfied as to the factual basis of the expert medical reports and placed little or no weight on those reports as to the cause of the appellant's mental disorder or psychiatric disease.[41]
2.Error in fact.
… Dr Victor Cheng examined the appellant on 13 and 21 September 2022. In his independent psychiatric assessment he stated:
(i)Appellant's mental state examination findings was consistent with the history that he presented.
(ii)In my opinion, at the time of the assessment he would meet the criteria for the diagnosis of an adjustment disorder as pursuant to DSM5.
(iii)I am of the opinion that his employment has significantly contributed to the development of his psychological condition.
[41] Reasons [137].
Ground 2 also referred to a number of legal authorities as to the proof of an expert opinion by admissible evidence and the requirement under s 188(2)(b) of the Act which requires the arbitrator to act according to equity, good conscience and substantial merits of the case.
At the conclusion of hearing evidence in the arbitration, the arbitrator ordered the parties to provide written closing submissions rather than presenting oral submissions. Mr Chowdhury relied upon Dr Cheng's report in his written closing submissions before the arbitrator to support his argument that his condition was significantly contributed to by his employment. The arbitrator did not in his Reasons discuss or analyse Dr Cheng's opinion and report beyond his diagnosis which I have referred to in [5] above.
By ground 2, Mr Chowdhury's complaint is that the arbitrator did not review and consider Dr Cheng's report and opinion as to the causes of his mental health condition. To assess whether the complaint raises an error of law, I note the following principles derived from Skinner v Broadbent:[42]
•When deciding between competing versions of the facts, it is necessary for an arbiter of fact to explain why one version has been preferred over another. In doing so, a trial judge (or arbitrator) should refer to relevant evidence and, when one set of evidence is accepted over a conflicting set of significant evidence, set out his or her findings as to how he or she has come to accept the one over the other.
•Further it is a decision‑maker's duty to consider all of the evidence in a case and, where important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give consideration to it.
•For a judge (or arbitrator) to ignore evidence critical to an issue of fact found against a party may promote a sense of grievance and create a litigant who is both disappointed and disturbed, because it tends to deny both the fact and the appearance of justice having been done.
[42] Skinner v Broadbent [2006] WASCA 2 [37] - [38]
I consider ground 2 raises a question of law and I treat the ground as alleging an error of law by the arbitrator in not evaluating the expert medical evidence, specifically Dr Cheng, and specifically explaining why that evidence (and Dr Cheng's opinion) was rejected. I take into account that Mr Chowdhury is self‑represented in this appeal and some flexibility is permitted in construing the way in which his grounds of appeal are expressed.
The arbitrator's approach and key findings
As I have noted in [5] ‑ [6] above, there was no dispute that Mr Chowdhury had contracted a mental health disorder and which the arbitrator implicitly accepted would constitute an 'injury' within the meaning of the Act, subject to Mr Chowdhury proving that his employment with ISS contributed to a significant degree to him contracting the condition.[43]
[43] Reasons [18], [19], [21] - [23].
The arbitrator then turned his inquiry as to whether Mr Chowdhury's mental disorder or psychiatric disease was contracted in the course of his employment and to which the employment was a contributing factor and contributed to a significant degree.[44] As I have noted, when considering the primary issue of whether employment was a contributing factor (and contributed to a significant degree) to the onset of Mr Chowdhury's mental health condition, the arbitrator held that Mr Chowdhury had failed to prove this on the balance of probabilities because he did not accept Mr Chowdhury's evidence on the 14 incidents which were at issue in the arbitration and found Mr Chowdhury was not a credible witness. Having reviewed all the evidence and having observed Mr Chowdhury in the hearing, the arbitrator was not persuaded that Mr Chowdhury's employment contributed, and contributed to a significant degree, to the contraction of his disease.[45]
[44] See Reasons [23] ‑ [34].
[45] Reasons [35].
The arbitrator made these findings:
(a)there was no evidence as to the likelihood of Mr Chowdhury's contraction of a disease occurring despite his employment with ISS, or that he was more likely to contract a mental disease just because he worked for ISS;[46]
(b)there was no evidence about activities not related to the employment that had contributed to his disease;[47]
(c)he was not persuaded about the significance of the workplace stressors as causing the mental disorder and found no objective evidence to support a conclusion that employment contributed to the mental disorder to a significant degree;[48]
(d)because there was little or no objective evidence of alleged workplace stress prior to Mr Chowdhury visiting his general practitioner on 24 March 2022, and because of his assessment of Mr Chowdhury's credibility, he attributed little or no weight to allegations of defamation, bullying, harassment, intimidation and discrimination;[49] and
(e)he was not satisfied as to the factual basis of the expert medical reports that relied on the history provided by Mr Chowdhury that he was defamed, bullied, harassed, intimidated and discriminated against in his workplace and placed little or no weight on those reports as to the cause of his mental health condition.[50]
The report from Dr Cheng, consultant psychiatrist
[46] Reasons [31].
[47] Reasons [34].
[48] Reasons [135].
[49] Reasons [136].
[50] Reasons [137].
Dr Victor Cheng is a consultant psychiatrist. On 13 and 21 September 2022 Dr Cheng reviewed Mr Chowdhury at his rooms. He reviewed Mr Chowdhury at the request of ISS lawyers and prepared a detailed report running to 31 pages which is dated 23 September 2022.[51] In the report he answered questions which had been requested by ISS lawyers. In the first part of the report, comprising some 13 pages of content, Dr Cheng largely sets out the factual matters of the 14 incidents that were considered by the arbitrator. I approach what is set out in those pages of Dr Cheng's report on the basis of the arbitrator's findings that he did not accept Mr Chowdhury's version of those events. Further, the arbitrator's ultimate credibility finding was that he did not accept Mr Chowdhury's evidence.
[51] Appeal Book, pages 324 - 354.
In the next part of his report, Dr Cheng detailed Mr Chowdhury's history of psychological symptoms, emotional symptoms, past medical and psychiatric history (including a denial of any family history of mental health issues) and his personal history. In his report Dr Cheng said:[52]
He was quite animated in his body language and at times emotionally aroused, speaking loudly. At other times, he did appear to be anxious about not being able to provide the information and would repeat sentences and also seemed to take time to choose his words.
…
He proceeded to describe the events that he had been subject to in very significant detail and at times wished for me to refer to various documents that he had.
His speech was accented and it was normal in rate, loud in tone and modulation. I could note that at times there were significant pauses as he seemed to be very careful not to provide the wrong information or information out of order.
His mood was described as being depressed.
…
[52] Appeal Book, pages 344 - 345.
In answer to a question as to whether Mr Chowdhury was suffering from any recognised psychological condition Dr Cheng said:[53]
[53] Appeal Book, pages 347 - 348.
When considering the history that he presented, Mr Chowdhury described a number of difficulties at work which would fall under a number of themes;
-he described a past history of back pain which he attributed to physical aspects of his work.
-Feelings of stress in relation to being stood down in 2017 and subsequently he reported a change in his work role and work status during a period where this was investigated.
-Dissatisfaction with his work duties and roster.
-Feelings of dissatisfaction with regards to his lack of progress to higher levels of seniority and duties within the organisation.
-Stress over being mistakenly stood down for not receiving a covert [sic] 19 vaccination.
-Stress in relation to application of leave.
-Feelings of stress in relation to rumours that he felt had been spread about him.
He reported taking 2 weeks stress leave prior to his period of annual leave which was for the purposes of a religious celebration. During this time he submitted complaints with regards to his work colleagues and then subsequently grievances against his managers.
He then described progressing on his annual leave.
He then appears to have had significant stress in relation to his perception that his employers had not adequately responded to his concerns by investigating the matter around rumours that had been spread against him.
Subsequently he has had significant stress in relation to the progress of the claim and also the result in uncertainty surrounding his future work prospects.
…
In response to a question about the cause of Mr Chowdhury's psychological symptoms and complaints, Dr Cheng answered as follows:[54]
…
I am of the opinion that his employment has significantly contributed to the development of his psychological condition.
I am not able to conclude that the events prior to learning of the rumours being spread about him resulted in a psychological condition. He does appear to have had symptoms of stress, in particular irritability outside of work however I am not of the opinion that he has met the criteria for the diagnosis of a psychiatric disorder as he does appear to have been able to continue to work. He did not appear to have reported any particular psychological symptoms to his treating practitioners and does not appear to have received appreciable psychological or psychiatric treatment prior to his cessation from work.
In terms of distress in relation to the rumours being spread about him, he did appear to be distressed by this. I am not able to conclude that he was suffering from a psychiatric disorder at that time. He does appear to have been significantly dissatisfied and had placed a complaint. He then proceeded [to] stress leave and then his annual leave.
Mr Chowdhury then appears to have experienced more significant distress in relation to his perception that his employers had not adequately responded to his complaints and had responded by changing his roster.
Subsequent to this the process of the claim and the uncertainty surrounding his future work prospects, he has had a further worsening of his mood and anxiety symptoms and at the time of the assessment he would meet the criteria for the diagnosis of an Adjustment Disorder.
The onset of his psychological condition is likely to be dated from the time that he learnt that his complaints had not been adequately responded to.
He did describe taking stress leave, placing a grievance and then proceeded on annual leave with expectations of returning back to work in May 2022 with a resolution of his grievances.
[54] Appeal Book, pages 349 ‑ 350.
Dr Cheng's prognosis was:[55]
At the present time in my opinion his predominant cause of his current psychological symptoms was related to his perception that his employers had not adequately responded to his concerns and also the uncertainty surrounding his future work prospects.
If he felt that his employers had not adequately responded or recognises [sic] concerns that this is likely to cause ongoing distress.
It is likely that he will continue to have psychological symptoms whilst he continued to experience uncertainty surrounding the outcome of his grievances, the uncertainties that he faced with respect to the process of the claim and also his future work prospects.
[55] Appeal Book, page 351.
The arbitrator did not address in his Reasons the parts of Dr Cheng's report I have set out. It appears that the arbitrator did not deal with the report in any detail because of his factual finding that Mr Chowdhury was not a credible witness, therefore, his versions of the workplace events were not credible and, accordingly, there was no factual foundation in his evidence for Dr Cheng to express any admissible opinion on the cause of Mr Chowdhury's condition.[56] For the reasons that I will set out in the next paragraphs, whilst the arbitrator referred to cases involving a worker's subjective perception to workplace events, (Anderson v Mercy Hospital and Azmitia),[57] he did not consider the question of whether, by reference to Dr Cheng's report, there was any reality in the workplace events Mr Chowdhury complained about such that his subjective perception could be of those events could be considered for the issue of causation. Specifically, whether Mr Chowdhury's employment caused his mental health condition.
[56] Reasons [35], [135] - [137].
[57] See [9] above and footnote 8.
Psychological disorder caused by a worker's subjective reaction to workplace events
Leaving aside statutory exclusions, a worker is entitled to compensation under the Act where he or she contracts a stress‑related disease 'in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree'.[58]
[58] Section 4 of the Act, definition of 'injury'.
A stress‑related disease or recognised psychological disorder which may satisfy the definition of 'injury' under the Act may be caused by a worker's subjective reaction to events and circumstances actually occurring in the workplace, provided that the reaction 'has a real connection [with those events] - as distinct from an event [that the worker] simply imagined was connected with [the] employment'.[59]
[59] St Mary's School v Askwith [2011] VSCA 90; (2011) 206 IR 414 [12] (Ashley JA with whom Warren CJ & Kyrou AJA agreed).
The significance of a worker's perception of events or the relevant state of affairs in the context of a workers' compensation claim (and workers compensation legislation) originates from a Federal Court decision of Wiegand v Comcare.[60] In that case, it was explained that provided a worker is exposed to some incident or state of affairs in the course of the employment, irrespective of whether the worker's perception of that incident or state of affairs is idiosyncratic, it is something to which the 'employment' contributed.[61] However, if the worker wrongly believed that something arose out of the employment when it did not, then the employment could not have been said to have contributed in spite of the worker's belief.[62]
[60] Wiegand v Comcare [2002] FCA 1464 (Wiegand) at especially [23] ‑ [31].
[61] Weigand [23] ‑ [24].
[62] Weigand [25].
In State Transit Authority of New South Wales vFritzi Chemler[63], Spigelman CJ (Bryson AJA agreeing) discussed a worker's 'perception' of events occurring in the workplace and emphasised that whether an injury arose out of or in the course of any employment 'gave rise to a test of causation'.[64] The Chief Justice went on to say that:[65]
Employers take their employees as they find them. With respect to psychological injury, there is a 'eggshell psyche' principle which, like the equivalent 'eggshell skull' principle is a law of compensation not a liability.
[63] State Transit Authority of New South Wales vFritzi Chemler [2007] NSWCA 249.
[64] Chemler [37].
[65] Chemler [40].
In the same case Basten JA noted that compensation for 'injury' depended upon causation and 'to focus on the concept of 'perception' may obscure the real issue'.[66] Basten JA also referenced the judgment of Windeyer J in Federal Broom Company Pty Ltd v Semlitch[67] that an 'incident which precipitated or stimulated, however irrationally, the worsening of [the worker's] condition could be regarded as a factor contributing to it'.[68]
[66] Chemler [69].
[67] Federal Broom Co Pty Ltd v Semlitch (1962) 110 CLR 626 (Federal Broom Co).
[68] Federal Broom Co (642).
The law requires no 'objective measure of reasonableness' test for a worker's perception of events.[69] It is not necessary that the worker's reaction to the events must have been 'rational, reasonable and proportionate before compensation can be recovered'.[70] However, a worker's perception must be based on events or a state of affairs that actually occurred or existed. In Wiegand, von Doussa J observed that a perception meets a 'reality' test if it concerns an incident or state of affairs that actually happened.[71] In this respect in Wiegand, von Doussa J observed:[72]
All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a 'reality' test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.
[69] Wiegand [31].
[70] Weigand [52].
[71] Weigand [31].
[72] Weigand [24].
The arbitrator made an error in not considering Dr Cheng's opinion
By reference to the principles set out in Skinner v Broadbent (which I have referred to at [55] above), I consider that the arbitrator made an error of law in failing to consider the medical opinion of Dr Cheng and to explain in his Reasons why he did not accept the opinion Dr Cheng formed that Mr Chowdhury's employment had significantly contributed to the development of his psychological condition. Further, by reference to the legal principles I have set out in [66] ‑ [70], the arbitrator should have assessed the evidence of Dr Cheng in a context of whether Mr Chowdhury held a perception which caused his condition which was about an incident or state of affairs in the course of employment with ISS that actually happened. Accordingly, I will grant leave to appeal on ground 2.
In the next paragraphs I undertake an assessment of the evidence before the arbitrator. In doing so I do not simply ignore the arbitrator's decision and start afresh. The effect of the error in not considering the opinion Dr Cheng's opinion that Mr Chowdhury's employment had significantly contributed to the development of his psychological condition, and, whether any other result might occurred but for the error, must be considered in the context of the factual findings made by the arbitrator. Those factual findings, including the credibility findings the arbitrator made with respect to Mr Chowdhury's evidence, were made on the basis of the arbitrator's obvious advantage in hearing the evidence at the arbitration.
Causation legal principles
Before turning to an evaluation of the cogency of Dr Cheng's opinion that Mr Chowdhury's psychological condition was significantly contributed by his employment, it is important to consider the legal principles of causation. The arbitrator set out, in my opinion, the correct question that had to be determined on the issue of causation. Mr Chowdhury had to prove on the balance of probabilities that his employment was a contributing factor and contributed to a significant degree to the contraction of his disease, being his mental health condition.[73] Further, a worker must point to either some event or occurrence in the course of employment or some characteristic of the work performed, or the conditions in which it was performed, that is a contributing factor to the injury for which compensation is sought.[74]
[73] Pilbara Iron Company (Services) Pty Ltd v Suleski [2017] WADC 114 [67] (Pilbara Iron Company).
[74] Pilbara Iron Company [67] ‑ [69]; Reasons [24].
Whether a worker's employment contributed, to a significant degree, to an injury suffered by the worker is a question of fact. To contribute to a significant degree requires a causal link that exists in fact. 'Significant' in this context means not insignificant or negligible but material. It is not necessary that the employment be the only contributing factor. Further, the factors outlined in s 5(5) of the Act must be considered in determining whether the worker's employment contributed to a significant degree to the contraction of the disease.[75]
[75] The arbitrator considered these factors in his Reasons at [28] - [34].
Further, questions of causation must be determined by applying common sense to the facts of each case.[76] Namely, the question of causation is determined by applying common sense criteria and not philosophical or scientific theories of causation.[77]
[76] See for example March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 523 ‑ 524 (March).
[77] March (509), (515), (516); Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122 [161] ‑ [171] (Summit Rural) including a lengthy discussion of the New South Wales Court of Appeal decision in Fisher v Nonconformist Pty Ltd [2024] NSWCA 32.
In Fisher v Nonconformist Pty Ltd[78] the New South Wales Court of Appeal considered s 9A of the Workers Compensation Act 1987 (NSW) which established a test of causation requiring that 'the employment concerned was a substantial contributing factor to the injury'. Any distinction between the Western Australian and New South Wales legislation as to whether employment is a substantial contributing factor or contributed to a significant degree is, for present purposes, not important.
[78] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32.
In Fisher v Nonconformist Pty Ltd the court upheld a first instance decision which used the notion of common sense when assessing causation under s 9A of the New South Wales Workers Compensation Act. The court held the use of the notion of common sense did not manifest any erroneous understanding of the legal test to be applied. Further, there is no reason to adopt a different approach to the common sense test of causation adopted at common law in relation to the issue of causation posed by the words 'arising out of'. Rather, the question of fact is whether there is such a connection between the worker's personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment.[79]
[79] Fisher [113]; see also Summit Rural [161] ‑ [171] which discussed the principles of common sense in the assessment of loss caused by a breach of contract.
Legal principles - weight to be given to expert evidence
Turning to the weight to be accorded to Dr Cheng's opinion, a starting point is to assess, by reference to the facts he has relied upon to form his opinion, whether those facts were proved or found to exist by the arbitrator. I will not set out the well‑known principles relating to the admissibility of and weight to be given to expert evidence other than to make a few observations.
An expert must either prove by admissible means the facts on which the opinion is based or explicitly state the assumptions as to fact on which the opinion is based.[80] In cases involving medical expert evidence, the relevant history supplied by a claimant provides the factual foundation for the statement of expert opinion. In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical specialist upon which his or her opinion is based. A decision‑maker must examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner, or any omission from the material given to him or her, renders the opinion inadmissible or of no weight.[81]
[80] Beer v Duracraft Pty Ltd [2004] WASCA 192 [78] (Beer).
[81] Beer [80].
It is recognised that a discrepancy between the facts as proved and the assumed facts underpinning a medical opinion does not inevitably result in inadmissibility of the opinion or that the opinion should be afforded no weight. If admissible evidence establishes that the matters assumed by the expert are 'sufficient like' to the matters proved so as 'to render the opinion of the expert of any value' the opinion will be admissible and may be relevant even though the matters assumed and proved may not correspond with complete precision. In these circumstances, a trier of fact must examine the variation to assess whether an unproven fact relied on by the expert or any omission from any information given to the expert renders the opinion inadmissible or of no weight.[82]
[82] Kipoi Holdings Mauritius Ltd v Robert Michael Kirman and Robert Conry Brauer as joint and several administrators of Tiger Resources Ltd (subject to Deed of Company Arrangement) [No 4] [2024] WASCA 145 [547], citing Beer [80].
No weight should be placed on Dr Cheng's opinion because the factual foundation was not proved
The factual foundation of Dr Cheng's opinion requires careful analysis. The doctor concluded that, while distressed, Mr Chowdhury's psychological condition[83] had not developed prior to him learning about the rumours allegedly spread about him. Nor did it develop at the point of him learning about and being distressed about the rumours. As an aside, that assessment is somewhat different to Mr Chowdhury's own evidence that described his learning about rumours about him as 'the last straw' and that this was the precipitating event that caused the contraction of his mental health condition.[84]
[83] Which Dr Cheng diagnosed as a Major Depressive disorder pursuant to DSM 5. Appeal Book, page 349.
[84] See [16], [24] - [25] above, and Reasons [115].
Dr Cheng's opinion places the onset of Mr Chowdhury's psychological disorder to have occurred from the time he formed the perception that his complaints to his employer were not being adequately addressed, or, had not been adequately responded to.[85] Further, Dr Cheng in his report diagnosed Mr Chowdhury 'at the present time'[86] as meeting the criteria for the diagnosis of an Adjustment Disorder and this condition 'primarily related to his perception that his employers had not responded adequately to his complaints and had not conducted appropriate investigations'.[87] That is, by September 2022 the cause of Mr Chowdhury's Adjustment Disorder was his perception of the inadequacy of ISS response to his complaints which originated on 21 March 2022, being the date of his grievance letter.[88]
[85] Appeal Book, pages 348 - 350.
[86] Being the date of Dr Cheng's report, 23 September 2022.
[87] Appeal Book, page 348.
[88] Reasons [116].
Mr Chowdhury's evidence was that unnamed colleagues had told him about what he described were rumours against him concerning the time he stopped an ambulance at Gate 00, that he was threatened with arrest by an AFP officer, that he collapsed while doing pat downs and was taken to hospital.[89]
[89] Reasons [113].
The arbitrator made a finding that none of the witnesses who gave evidence had heard rumours circulating about Mr Chowdhury.[90] He made reference to Mr Chowdhury talking about a conspiracy or syndicate behind rumours against him and that he believed ISS was trying to cover up what had happened and that is why the investigation was not progressed while he was on leave.[91] The arbitrator also said that Mr Chowdhury's evidence about the rumours was hearsay, there being no direct evidence from any witness about what the rumours were and who was spreading them.[92]
[90] Reasons [129].
[91] Reasons [128].
[92] Reasons [125].
Reading the arbitrator's Reasons as a whole, the arbitrator has concluded as a matter of fact that there were no rumours spreading about Mr Chowdhury in the workplace.
Accordingly, to the extent Dr Cheng based his opinion that rumours being spread about Mr Chowdhury in the workplace contributed to his psychiatric condition, no proved factual basis supported this aspect of his medical opinion.
When Dr Cheng referred in his opinion, to Mr Chowdhury developing 'more significant distress in relation to his perception that his employers had not adequately responded to his complaints and had responded by changing his roster',[93] Dr Cheng has relied upon, as a first step, Mr Chowdhury being stressed about rumours spreading about him, and then, that distress increasing, namely, that there was more 'significant distress' caused by Mr Chowdhury's perception that his complaints had not been adequately responded to.
[93] Appeal Book, page 350.
I have set out in [18], [23] - [34] above, the arbitrator concluded that the investigation ISS undertook in response to Mr Chowdhury's complaint involved no significant delay and that ISS had not acted unreasonably in undertaking the investigation.
Dr Cheng's opinion was that the onset of Mr Chowdhury's psychological condition corresponded with his perception that his employer had not adequately responded to his complaints (and had responded by changing his roster). It is difficult to treat the factual basis for this opinion in isolation (or on a 'standalone' basis which is separate) from Dr Cheng's assumption (or assumed factual foundation) that Mr Chowdhury was first distressed by rumours circulating about him which had occurred by 21 March 2022. It is important to bear in mind that Mr Chowdhury's distress escalated (or worsened) according to Dr Cheng after he perceived his complaints were not taken seriously. The first objective date of his perception that his complaints were not being taken seriously was on or around 6 May 2022 when he said he would not return to work and lodged his workers' compensation claim.
Read fairly, the fact that rumours were being spread about Mr Chowdhury in the workplace was integral to Dr Cheng's opinion. His opinion of the development of a mental disorder starts with Mr Chowdhury's distress about rumours being spread about him. Without accepting, as a matter of fact, that rumours were being spread about Mr Chowdhury, the weight that can be attached to Dr Cheng's ultimate opinion is diminished to a point where it cannot be relied upon.
The events after 20 or 22 March 2022, on a reading of Dr Cheng's entire report, cannot be the sole cause, or factual foundation, for a medical opinion that Mr Chowdhury's condition was significantly caused by his employment, without acceptance of the foundational fact that rumours were being spread about Mr Chowdhury before 20 or 22 March 2022. Otherwise, the doctor's opinion would seemingly be that the condition was caused by Mr Chowdhury's response to an investigation by his employer into a meritless complaint which had not occurred as a matter of fact or reality. This is a sufficient basis to conclude that no weight should be accorded to Dr Cheng's opinion that Mr Chowdhury's employment contributed significantly to his psychological condition.
Conclusions on ground 2
The arbitrator's findings were that the incidents described by Mr Chowdhury to prove bullying, harassment, intimidation and discrimination did not occur as he described. Next, actions taken by ISS constituted reasonable management action. Further, Mr Chowdhury was not a credible witness, no rumours were being spread about him in the workplace, and the investigation ISS undertook was neither unreasonably delayed nor unreasonably handled. As I have noted these factual findings loom large over all grounds of appeal. The factual findings are not, in my view, infected by any legal error.
As noted, Dr Cheng's opinion requires a cumulative factual foundation to give it weight. Initially, Mr Chowdhury allegedly suffered distress about workplace rumours, which distress was insufficient for Dr Cheng to conclude he was suffering from a psychiatric disorder at that time. The onset of his mental health condition was then attributed to more significant distress arising from his perception that his complaints were not being adequately addressed. However, the basis of those complaints was the alleged workplace rumours. The absence of any factual foundation for rumours being spread about Mr Chowdhury renders Dr Cheng's ultimate opinion unsafe to rely upon. There is a material discrepancy between the facts as proved and the assumed facts underpinning the medical opinion.
When applying the notion of common sense to causation, the arbitrator's factual findings that Mr Chowdhury was not a credible witness and his evidence could not be relied upon, together with the objective findings about the investigation not being unreasonably delayed, are such that Dr Cheng's opinion should not be accepted on the balance of probabilities. For employment to be a significant factor in the contraction of a mental health condition requires such a connection between the worker's injury and employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment. In this case, the evidence establishes that Mr Chowdhury's employer responded appropriately to his complaint about 'non-existent rumours'.
To impose legal liability to make weekly payments of compensation where the arbitrator found that Mr Chowdhury's underlying allegations had no merit, tied only to his subjective perception that the investigation did not take his concerns seriously, fails the common sense test of causation. An investigation into a complaint which had no factual basis cannot, as a matter of common sense, satisfy the test that employment contributed significantly to the onset of Mr Chowdhury's injury. It is not sufficient for Mr Chowdhury to point to ISS's investigation of his unsupported complaints and claim the investigation took too long when the arbitrator held objectively it had not.
Upon consideration of all evidence before the arbitrator and consistent with the arbitrator's factual findings, which are not infected by the error I consider he made in failing to consider Dr Cheng's report, I am not persuaded that the outcome would have been, or might have been different. Dr Cheng's opinion, in light of the credibility findings regarding Mr Chowdhury's evidence, could not be given any weight in determining whether Mr Chowdhury's mental health condition was significantly contributed to by his employment. For these reasons, whilst leave to appeal should be granted for ground 2, the appeal on ground 2 is dismissed.
The remaining grounds of appeal
I now turn to the other grounds of Mr Chowdhury's appeal being grounds 3 ‑ 14. In broad terms, the remaining grounds, in substance, challenge to the arbitrator's factual findings and credibility assessment of Mr Chowdhury. These grounds assert that the arbitrator should have accepted Mr Chowdhury's evidence over that of ISS witnesses on various issues, including:
(a)the entitlement to relocation costs (grounds 3, 4);
(b)the reasonableness of management actions regarding discipline, rosters, and stand-downs (grounds 5, 6, 10, 12);
(c)the cause of alleged physical injuries without supporting medical evidence (grounds 7, 9);
(d)the characterisation of the end of a temporary acting position as a 'demotion' (ground 11); and
(e)miscellaneous factual findings (grounds 13, 14).
Grounds 3 and 4
It is convenient to deal with grounds 3 and 4 together as they relate to findings of fact made by the arbitrator about Mr Chowdhury's move from Darwin to Perth in 2016. Ground 3 concerns findings made by the arbitrator in respect of Mr Chowdhury's claim that he suffered his first symptoms of musculoskeletal conditions or injuries[94] on 14 December 2016 because of financial stress.
[94] Described in Reasons as 'msk symptoms' [51].
Ground 3 challenges the findings made by the arbitrator in his Reasons at [51] ‑ [55] to the effect that Mr Chowdhury was not entitled to any expenses incurred as a consequence of his relocation from ISS Darwin operations to the Perth operations and that he suffered knee and neck pain resulting from financial stress from not receiving relocation costs.
Ground 4, which also relates to Mr Chowdhury's relocation from Darwin to Perth, asserts that the arbitrator made an error of law in holding there was no expert evidence to support financial stress or his employment caused his neck and knee pain.
The arbitrator made the following findings of fact:[95]
1.ISS operations at Darwin International Airport ceased as its contract ended;
2.ISS Darwin offered staff, including Mr Chowdhury, opportunities at other locations;
3.ISS recruited Mr Chowdhury for a role in Perth;
4.Mr Chowdhury upon being recruited by ISS to its Perth operations was not entitled to relocation costs, immediate shifts on arrival or the costs he incurred in obtaining his medical clearance to commence employment; and
5.the neck and knee pain Mr Chowdhury said that he suffered did not result from financial stress caused by ISS.
[95] Reasons [51] - [55].
The arbitrator based his factual findings on the evidence of Mr Chowdhury, Ms Goss (who is the ISS Darwin human resources manager) and documentary evidence. The arbitrator considered the evidence of Ms Goss was corroborated by an ISS email dated 18 November 2016. The arbitrator found on the basis of Ms Goss' evidence and the email of 18 November 2016 that Mr Chowdhury, upon being recruited to Perth, was not entitled to relocation costs nor immediate shifts on arrival or the costs of his medical clearance.
Ground 3 in my view seeks to challenge the arbitrator's factual findings. In my view, there is no basis to challenge the factual findings that the arbitrator made.
Ground 4 contends that the arbitrator made an error of law in holding there was no expert evidence to support his claim that his employment with ISS caused his neck and knee pain. Whilst Mr Chowdhury seemingly did consult a general practitioner for neck, knee and other joint pain on 14 December 2016, the general practitioner's records made no diagnosis of what caused the pain. Further, the general practitioner's records did not attribute the complained pain to financial stress or Mr Chowdhury's employment.
In his appeal submissions Mr Chowdhury made reference to the word 'transfer' in s 5(4) of the Act. However, for the same reasons as set out in ground 1, s 5(4) has no application to the dispute given the arbitrator's finding that Mr Chowdhury's employment with ISS did not contribute to a significant degree to the contraction of his injury.
Finally, as the arbitrator noted, Mr Chowdhury did not call any evidence from medical practitioners supporting any connection between financial stress and knee or neck pain. The arbitrator had the advantage of considering the evidence at the time it was given. There is no basis to conclude any error of law as asserted in ground 4.
Grounds 3 and 4 do not raise a question of law or any issue of law. Leave to appeal is refused for grounds 3 and 4.
Ground 5
Ground 5 relates to the arbitrator's findings about two incident reports that Mr Chowdhury completed on 8 and 9 June 2017. Mr Chowdhury complained about receiving shorter meal breaks than other employees. He claimed these events demonstrated discrimination by ISS.
The arbitrator reviewed the incident reports (and the lack of other evidence of any other action by Mr Chowdhury took at the time) and concluded that ISS had on each occasion docked Mr Chowdhury 10 minutes of his break time because he took too long to complete tasks allocated to him.
The arbitrator did not consider that either of these incidents amounted to unreasonable conduct of ISS or bullying, harassment, intimidation or discrimination by his employer.[96] The arbitrator also noted that employers have a legal right to direct and control how work is done, and managers and supervisors have a legitimate responsibility to manage and monitor work and provide feedback on performance. The arbitrator found these incidents were insignificant and reasonable management action. Further, for Mr Chowdhury to equate these incidents to discrimination affected his credibility and demonstrated a willingness on his part to exaggerate in retrospect the significance of events that he had complained about to bolster his claim.
[96] Reasons [56] - [57].
Ground 5 is, in substance, a challenge of a factual finding of the arbitrator. The arbitrator had to make factual findings based upon considering competing evidence. To the extent that the arbitrator overlooked or disregarded relevant evidence or made a finding involving any incorrect inference from the facts, made a finding against the other evidence, or the weight of evidence, no error or question of law arises.
In my view, there is no error of law made out by ground 5 of the appeal grounds. Accordingly, there is no question of law. Leave to appeal is refused on ground 5.
Ground 6
Ground 6 relates to findings made by the arbitrator about an incident on 17 September 2017 when Mr Chowdhury and a colleague were disciplined after a knife passed through security screening undetected. On 20 September 2017, ISS gave Mr Chowdhury a written warning and directed him to undertake 20 hours of on-the-job training. He claimed this was harsh and unreasonable treatment that 'turned his life upside down'.[97] The arbitrator concluded that Mr Chowdhury had not persuaded him that ISS's response to the incident was not reasonable management action.[98]
[97] Reasons [69].
[98] Reasons [68].
By ground 6 Mr Chowdhury contends that the arbitrator made an error in fact and law in concluding ISS's response to the incident was fair and the outcome was not disproportionate.
The appeal ground asserts that the arbitrator made an error of law because he ought to have considered that the actions ISS took against him was before an investigation and were in breach of s 5(4) of the Act. Further, the arbitrator failed to properly construe the word 'discipline' in s 5(4)(a). As I have noted, that section is not applicable to the question of causation. I have made comments about this when discussing ground 1. For the same reasons as set out in ground 1, s 5(4) has no application to the dispute given the arbitrator's finding that Mr Chowdhury's employment with ISS did not contribute to a significant degree to the contraction of his injury.
Mr Chowdhury also says with respect to ground 6 that the arbitrator made errors of fact. He submits that the arbitrator ought to have considered certain evidence of a witness, Ms Nagpal, in which she said for that kind of incident if it had happened at the date of hearing, she would impose administrative action of standing down only (necessarily not requiring further training). Ground 6 also seems to contain an implicit assumption that Mr Chowdhury denied that he had breached any workplace procedure.
The arbitrator concluded that from a review of the incident, ISS conduct was reasonable management action and not evidence of bullying, harassment, intimidation or discrimination.
The appeal ground does not allege any error of law. Simply because Mr Chowdhury denied he breached any relevant employment procedure does not mean the arbitrator's finding is wrong or that any error of law arose. The arbitrator has simply made a finding of fact that an alleged 'disciplinary measure' was not bullying, harassment, intimidation or discrimination and the finding was open to him on a review of the evidence. Leave to appeal on ground 6 is refused.
Ground 7 and ground 9
Ground 7 and ground 9 can be considered together. The grounds relate to what is described in the appeal grounds as 'first back pain' ground 7 and 'second back pain' (caused by 'pat downs') ground 9.
Mr Chowdhury attributed physical symptoms (being back pain and leg cramps) starting in March 2018 to psychological causes from the disciplinary measures imposed by ISS after the security screening incident in September 2017, claiming it had an 'enormous psychological impact'. The arbitrator did not accept the unqualified opinion of Mr Chowdhury on this issue and noted there were no contemporaneous records of psychological impact from Mr Chowdhury's GP.[99]
[99] Reasons [70] - [73].
Mr Chowdhury challenges the arbitrator's findings about what he calls the 'first back pain and leg cramps' in ground 7. In his ground he refers to various other evidence from which an inference could be drawn about his back pain and leg cramps.
With respect to ground 9, on 29 December 2019 Mr Chowdhury had to conduct over 100 pat downs due to faulty screening machines (referred to in the reasons as 'faulty ETD machines'). He said these physical pat downs caused him back pain. The arbitrator noted no medical evidence was called to support his complaint and found the incident did not have any effect on Mr Chowdhury apart from a sore knee that resolved after he finished his shift.[100]
[100] Reasons [86] - [88].
Mr Chowdhury challenges these findings of the arbitrator in ground 9. By ground 9 he referred to various factual issues including evidence of Mr Richardson about whether a recent complaint was made by Mr Chowdhury. At best this alleges an error of fact and not an error of law (or mixed error of law and fact).
It is said that the arbitrator made an:[101]
[E]rror of discretion … by asserting that despite no medical evidence the appellant attributes his back pain and leg cramps to physical and psychological causes resulting from the incident on 17 September 2017.
[101] Appeal Book, page 893.
Mr Chowdhury did not produce any medical evidence in the arbitration, commenting on a connection between psychological condition and musculoskeletal injury. The arbitrator said that 'despite no medical evidence, Mr Chowdhury attributes his back pain and leg pain to physical and psychological causes resulting from the incident on 17 September 2017 (and that) the incident had an enormous psychological impact on him and his pain did not occur straight away, but it was gradual and happened slowly over time'.[102] The arbitrator did not accept Mr Chowdhury's opinion or description of the incident on 17 September 2017 which I have referred to in my discussion of ground 6. The arbitrator also noted there were no contemporaneous records of complaining about the psychological impact of the 17 September 2017 incident.
[102] Reasons [72].
With respect to 'the second back cramps', which allegedly occurred after 29 December 2019 being the day that he had to pat down more than 100 people, the arbitrator noted there was no medical note or certificate in respect of the incident, and he found that Mr Chowdhury was fit to return to work the next day. The relevance of the finding appears to be that the incident did not demonstrate bullying, harassment, intimidation or discrimination by ISS or that the incident had any effect on Mr Chowdhury apart from a sore knee that resolved after he finished his shift. Mr Chowdhury did not lodge any claim seeking entitlements for lower back or knee pain because of his work duties. There was no evidence to support the assertions made by Mr Chowdhury which the arbitrator dealt with in these paragraphs.
Grounds 7 and 9 do not raise any question of law. On my review of the evidence before the arbitrator, there was no evidence to support Mr Chowdhury's assertions of any connection between a psychological condition and his alleged musculoskeletal injuries or the alleged back pain and back cramps. I repeat the observations I have made with respect to factual findings. In my view, no error of law or question of law is raised by grounds 7 and 9. Leave to appeal is refused on grounds 7 and 9.
Ground 8 - pneumonia and bronchitis
Ground 8 alleges the arbitrator made an error of law in concluding that Mr Chowdhury had not proved his roster was dangerous or resulted in him contracting pneumonia or bronchitis.
To place ground 8 in its context, Mr Chowdhury received a generic email from ISS about absenteeism after a period of time when he had been off work on sick leave. Mr Chowdhury alleged that this generic email was harsh. He received the email on 7 August 2018 after he had been diagnosed as having pneumonia or bronchitis. Mr Chowdhury in his claim before the arbitrator contended that he contracted pneumonia and bronchitis because of his roster (which he described as dangerous) which required him to attend work early in the morning in winter.
The arbitrator noted that Mr Chowdhury did not tender any medical evidence to support his claim. With respect to the email the arbitrator said it was generic in its terms requesting him to attend a meeting during work hours in relation to his level of absenteeism and reminded him of his obligations to provide medical certificates in support of any personal leave applications. The arbitrator went on to find that not only was the generic letter not harsh nor unfair, but rather was a reasonable management action carried out in a fair way. Further, he was not persuaded by Mr Chowdhury that his roster was dangerous or resulted in him contracting pneumonia and bronchitis.
The arbitrator found the email Mr Chowdhury complained of was not harsh and did not evince bullying, harassment, intimidation or discrimination.[103]
[103] Reasons [80] - [85].
Ground 8 seeks to challenge these factual findings.
In my view, ground 8 does not involve a question of law or an error of law on the part of the arbitrator. Leave to appeal is refused on ground 8.
Ground 10 - request for roster changes
In the hearing before the arbitrator, Mr Chowdhury claims that he suffered psychological impact by being rostered onto busier gates, being treated less favourably than other employees and 'dangerous rosters'. The arbitrator weighed evidence as to these issues in his Reasons at [89] ‑ [96]. The arbitrator found no evidence of dangerous rosters and noted Mr Chowdhury had made only one request for a roster change for family reasons.
The arbitrator found that the reason why Mr Chowdhury wanted a roster change was so he could either drop off or pick up his children from school. His wife was sick and financially they were paying for an Uber for her to take their children to school. The arbitrator held that Mr Chowdhury had not persuaded him that what he referred to as the dangerous and discriminatory rosters amounted to bullying, harassment and intimidation, concluding this did not demonstrate bullying, harassment, intimidation or discrimination by ISS.
Ground 10 seeks to attack a finding made by the arbitrator that on a review of the evidence he was not persuaded by Mr Chowdhury that his roster was dangerous and not persuaded his roster and a single request to change it that was responded to demonstrates that he was bullied, harassed, intimidated or discriminated against.[104]
[104] Reasons [96].
In my view, ground 10 does not raise a question of law. The findings made by the arbitrator were open to him on an assessment of the evidence. No error of law is made out.
Ground 11 - demotion
On 26 August 2021, a general ISS memorandum was circulated to staff to the effect that each security restricted area team would be allocated a '2IC' position. Mr Chowdhury was appointed one of seven 2ICs. At the time, ISS stated that the changes would last until 31 October 2021. A further email was circulated on 10 November 2021 to the effect that all 2IC positions would cease with effect from 8 November 2021 and, upon that date, all affected staff would revert to their previous position or level.[105]
[105] Reasons [98].
Mr Chowdhury's role as a temporary 2IC ended after the trial period. He claimed shock and psychological impairment when the trial period ended. The arbitrator accepted this was clearly a trial position and found no objective evidence that Mr Chowdhury suffered any psychological impact from the role ending.[106]
[106] Reasons [97] - [101].
Ground 11 seeks to challenge these findings. Specifically, he contends that the arbitrator made an error in fact and law by finding there was no objective evidence that his claim that demotion affected him psychologically and caused impairment. The arbitrator held that he was not persuaded by Mr Chowdhury that his 'demotion from a 2IC position amounted to bullying, harassment, intimidation or discrimination'.
In brief terms, for a short period of time Mr Chowdhury worked in, what was referred to in the evidence, as a 2IC position on a trial basis knowing it was a trial period. That finding was not challenged by this ground of appeal. The arbitrator found that the return to his normal substantive position was not bullying, harassment, intimidation or discrimination. That is ultimately a finding of fact and is again informed by competing versions of events and the arbitrator's preference to contemporaneous and other evidence where such evidence contradicted Mr Chowdhury's evidence. Further, Mr Chowdhury did not produce any medical evidence that the demotion affected him psychologically or caused any impairment.
The challenge by ground 11 is really a challenge as to the weighting of evidence given by ISS witnesses Ms Goss and Ms Simpson. It does not raise any error of law. The ground also refers to the notion of an employer's conduct being unreasonable and harsh which only applies to considering an exclusion under s 5(4) of the Act. Because of the arbitrator's findings that the mental health condition was not caused by employment, whether the conduct was unreasonable or harsh was a different consideration to the consideration of causation for the reasons I have outlined in ground 1. Ground 11 does not raise an error of law and leave to appeal is refused.
Ground 12 - an instance of being stood down
By ground 12 Mr Chowdhury contends that the arbitrator made an error in fact or law with respect to a claim he had made before the arbitrator that he was stood down in circumstances that were unjust or unreasonable.
The factual context for ground 12 is that by 1 December 2021, all ISS staff at Perth Airport were required by State government mandate to have an initial COVID‑19 vaccination. By 30 November 2021, Mr Chowdhury had not had an initial COVID‑19 vaccination. Mr Chowdhury was stood down for delaying his COVID‑19 vaccination. The arbitrator found ISS had given ample warning and the action of standing Mr Chowdhury down was reasonable, with no objective evidence of effect on emotional wellbeing.[107]
[107] Reasons [102] - [104].
Mr Chowdhury in his ground of appeal and submissions contends that he submitted his vaccination certificate 'on time'. Further the 'stand down' was a form of discipline within the meaning of s 5(4)(a) of the Act.
The arbitrator found that Mr Chowdhury left it until the last minute to get his initial COVID‑19 vaccination and that was the reason why he was stood down. The arbitrator made a finding that he was not persuaded by Mr Chowdhury that being stood down, despite obtaining his vaccination certificate within the deadline, amounted to bullying, harassment, intimidation or discrimination by ISS or that it affected his emotional wellbeing.
Ground 12 challenges findings of fact. The findings of fact were open on the evidence for the arbitrator to make. With respect to the error of law Mr Chowdhury seeks to invoke that the action taken by ISS was unreasonable and harsh. I repeat the observations I made on ground 1. These matters are only relevant for a consideration of the exclusionary factors under s 5(4) after a finding is made that employment significantly contributed to the onset of the injury. For the reasons that I have already outlined, the arbitrator did not need to consider these issues given his finding that Mr Chowdhury had not persuaded him that employment had significantly contributed to the onset of the injury. Leave to appeal is refused on ground 12.
Ground 13 - assumptions made by the arbitrator
Ground 13 seeks to challenge 'assumptions' (more properly factual findings) made by the arbitrator in his Reasons at [114], [124], [126], [130], [132] and [140].
At their highest, these are alleged 'weighting' errors in considering all of the evidence and inferences to be derived from the evidence. I dealt with the substantive complaint about the lack of acceptance of the expert evidence in ground 2. At their highest, these matters allege errors of fact. They are in no way material to the ultimate decision reached by the arbitrator. Ground 13 does not raise any error or question of law. Leave to appeal is refused on ground 13.
Ground 14
Ground 14 alleges that the arbitrator made findings of fact in contradiction of witnesses and made errors of fact and law by reaching the conclusions he did at [94] ‑ [95] of his Reasons which related to roster changes.
I have already dealt with these arguments on the roster change ground of appeal, ground 10. Ground 14 challenges the weight the arbitrator placed on certain evidence. It is a challenge of factual findings. In effect, Mr Chowdhury contends that the arbitrator should have accepted his evidence over the other evidence led at the arbitration. The arbitrator found that Mr Chowdhury was not a credible witness. Ground 14 does not raise any error of law. Leave to appeal is refused on ground 14.
Conclusion
The end result is that leave to appeal is refused on all grounds other than ground 2. For the reasons I have already outlined, while I will grant leave to appeal on ground 2, the appeal should be dismissed. Upon publication of these reasons, I will hear from the parties as to the appropriate orders to dispose of this appeal including as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to His Honour Judge Curwood
26 SEPTEMBER 2025
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