Dimian v Millennium Security Specialist Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dimian v Millennium Security Specialist Services Pty Ltd [2024] NSWPIC 360
APPLICANT:	Nabil Dimian
RESPONDENT:	Millennium Security Specialist Services Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	5 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation and medical or related treatment expenses pursuant to section 60; consideration of applicant’s and witnesses’ statements, medical reports, other treatment records, claim correspondence, as well as factual and contractual material; respondent accepts that the applicant sustained a psychological injury and has no current work capacity as a result but relies upon a defence under section 11A(1); applicant concedes injury was wholly or predominantly due to actions with respect to discipline and/or transfer; consideration of whether the respondent can establish the reasonableness of its actions with respect to discipline and/or transfer; Department of Education and Training v Sinclair, Makdessi v Millennium Security Specialist Services Pty Ltd, Jeffery v Lintipal Pty Ltd, Pirie v Franklins Ltd, Melder v Ausbowl Pty Ltd, Buxton v Bi-Lo Pty Ltd, Ritchie v Department of Community Services, Secretary of the Department of Foreign Affairs and Trade v Styles & Anor, Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad, Rail Corporation NSW v Aravanopules, Northern NSW Local Health Network v Heggie considered; Held – the respondent has failed to establish that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer or discipline pursuant to section 11A(1); awards for the applicant for weekly benefits compensation and medical or related treatment expenses pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. As a result of the respondent’s processes and actions from 17 February 2023 with regard to its investigation into the applicant’s alleged role in a robbery at Stockland Mall, Merrylands, the applicant has sustained an injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), being a psychological injury. 2. The respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer or discipline. 3. The applicant has been incapacitated for work as a result of the psychological injury since 18 February 2023. He has had no current work capacity since then. 4. The applicant’s pre-injury average weekly earnings (PIAWE) is $1,746.18. This amount is adjusted, when apply relevant indexing, to $1,818.47 from 1 April 2023, to $1,861.57 from 1 October 2023, and to $1,894.89 from 1 April 2024. 5. The applicant is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent. The Commission orders: 6. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 36(1) of the 1987 Act from 18 February 2023 to 30 March 2023, at the rate of $1,658.87 per week. 7. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 36(1) of the 1987 Act from 1 April 2023 to 19 May 2023, at the rate of $1,727.55 per week. 8. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 20 May 2023 to 30 September 2023, at the rate of $1,454.78 per week. 9. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 1 October 2023 to 31 March 2024, at the rate of $1,489.26 per week. 10. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 1 April 2024 to date and continuing, at the rate of $1,515.91 per week. 11. The respondent is to be given credit for all weekly benefits compensation paid by it since 18 February 2023. 12. The parties are given liberty to apply to the Commission on or prior to 18 July 2024 regarding the correctness of the calculations in determination 4 and orders 6-10. 13. There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Nabil Dimian (the applicant) is 30-years-old and commenced employment as a security officer with Millennium Security Specialist Services Pty Limited (the respondent) in July 2021. He worked for it at Stockland Mall, Merrylands (the Mall). At all material times, there was a facilities management contract in place between the respondent and Stockland Property Management Pty Limited (Stockland), by which the respondent provided security services (including the services of the applicant) to Stockland at the Mall.
The applicant alleges that he sustained a psychological injury as a result of processes and actions taken in the course of his employment with the respondent from 17 February 2023, during and subsequent to an investigation into his alleged role in a robbery at the Mall.
The applicant has not worked since 18 February 2023 due to his psychological injury.
On 28 March 2023, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to his psychological injury. It also issued further notices denying liability under s 78 of the 1998 Act dated 11 May 2023 and 14 February 2024.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly benefits compensation from 18 February 2023 to date and continuing pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act), as well as payment of his medical expenses in relation to his treatment for his psychological injury pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that only the following issue is in dispute:
(a) whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant's psychological injury was caused by reasonable action taken or proposed to be taken by it with respect to transfer and/or discipline.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute was initially listed for conciliation/arbitration before the Commission on
19 September 2023. The dispute was then unable to be resolved, and a Certificate of Determination was issued by the Commission in respect of the dispute dated
24 October 2023. The respondent lodged an appeal in relation to that Certificate of Determination, the result of which was the revocation of the Certificate of Determination and the remittance of the dispute for rehearing by a Member of the Commission.
The dispute was therefore subsequently listed for conciliation/arbitration before myself on
24 May 2024. On that occasion, Mr Jarryd Malouf of counsel appeared for the applicant instructed by Mr Malai, and Mr Fraser Doak of counsel appeared for the respondent instructed by Ms Tancred. The applicant was present in person and supported by his sister (Theresa Dimian), and a representative from the respondent’s insurer (Mr Padas) was also present.
As an agreed resolution of the dispute was again not reached during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
The applicant confirmed that there was no issue that his psychological injury had been wholly or predominately caused by the respondent’s processes and actions from
17 February 2023 with regard to its investigation into the applicant’s alleged role in a robbery at the Mall.
The respondent confirmed that there was no issue that the applicant had sustained a psychological injury caused by the respondent’s processes and actions from
17 February 2023 with regard to its investigation into the applicant’s alleged role in a robbery at the Mall. The respondent was however alleging that its processes and actions in this regard were reasonable actions taken by it with respect to transfer and/or discipline, such that it had a defence to the applicant’s compensation claim with respect to his injury pursuant to s 11A of the 1987 Act.
The applicant confirmed that he had no objection to the respondent relying upon ‘transfer’ as a ground of its defence in this regard, despite the fact that that ground had only been first raised by the respondent in its 14 February 2024 notice under s 78 of the 1998 Act.
The respondent confirmed its agreement that the applicant had had no current work capacity as a result of his psychological injury since 18 February 2023. The parties also advised that the applicant’s pre-injury average weekly earnings (PIAWE) had been agreed at $1,746.18. As a result, there was no need to admit into evidence the Wages Schedules lodged with the Commission by each party.
The only issue for me to determine therefore (see paragraph 6 above) was agreed between the parties. It was also agreed between the parties that should I determine that issue in favour of the respondent, there would be an award for the respondent. However, should I determine that issue in favour of the applicant, there would be:
(a) awards in favour of the applicant from 18 February 2023, pursuant to ss 36 and 37 of the 1987 Act - calculated having regard to the agreed PIAWE (as adjusted if necessary to apply relevant indexing) and to the agreed lack of current work capacity of the applicant, and
(b) a ‘general’ order in favour of the applicant pursuant to s 60 of the 1987 Act.
Finally, the documents to be admitted into evidence were discussed, and the documents referred to in paragraph 17 below were admitted into evidence with the consent of both parties, save for one objection which I rejected. The respondent objected to the admission of the applicant’s supplementary statement dated 28 March 2024 on the basis that it raised new issues which the respondent had been unable to deal with, despite the fact that the statement had been served upon it over seven weeks earlier. I rejected the objection as I did not believe that the statement in fact raised new issues, and as I believed that the respondent had had sufficient time to deal with the evidence in the statement should it have so wished. The statement was admitted into evidence.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents;
(c)    the applicant’s Application to Admit Late Documents dated 2 April 2024 (applicant’s AALD) and attached documents;
(d)    the respondent’s Application to Admit Late Documents dated 14 February 2024 (respondent’s first AALD) and attached documents, and
(e)    the respondent’s Application to Admit Late Documents dated 13 May 2024 (respondent’s second AALD) and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided two statements. The first statement was taken from him by an investigator appointed by the respondent, on 21 March 2023. It is found at page 1 of the ARD.
He says that he commenced his employment with the respondent in July 2021, based at the Mall. In his employment, he reported to either his supervisor, Majed Homsi (Homsi), or the respondent’s account manager, Mikhail Fajloun (Fajloun).
He says that on 17 February 2023, Fajloun “started blasting me and Majed about the CCTV cameras not recording during a specific period of time”. A robbery at the Mall had occurred during that period of time, but the applicant “was unaware that anything had happened at this stage”.
The applicant understands that Fajloun then had a meeting with Stockland’s operations manager, Walid Farhat (Farhat).
Fajloun then had another meeting with the applicant, telling him that on the date in question, someone had used Farhat’s login credentials and changed CCTV recording times. The security office cameras were also not working on the date in question, so it could not be determined who had done this.
Later on 17 February 2023, the applicant was called into another meeting with Homsi and Faljoun. He was told that Farhat had checked security camera footage for the date of the robbery (8/9 February 2023) from the camera outside the security office, and discovered that during the time when Farhat’s login credentials were used, the applicant and a fellow security officer, George Makdessi (Makdessi), had entered the security office. The applicant advised Faljoun that he may have entered the office but did not use Farhat’s login credentials. Faljoun asked him if he was sure, and he replied that he was “100 percent sure”.
Homsi was then asked to leave the meeting, and Faljoun telephoned the respondent’s national security manager, Joshua Swain (Swain). The applicant says:
“Joshua explained the situation to me and he said I was seen walking into the office and apparently, I was in there for 40 minutes or so. I denied everything again. He then told me that they may look at suspension depending on the outcome of an internal investigation. I still did not think I was in any trouble because I had not done anything.”
Later on 17 February 2023 at 7:09pm (while still performing his employment duties), the applicant received a message from Homsi advising him that both he and Makdessi would be stood down from employment for a week “with pay”. The applicant says that he then checked the security camera footage from the camera outside the security office himself, in relation to 8 February 2023 and 9 February 2023. He says:
“They claimed that I was in the office for 40 minutes. They are saying I entered at 14.51 and left at 15.38. Both of these timeframes were when the cameras had been changed. I was in the office during some of these times but I was always accompanied by either George or Fits who is also a security guard. I entered the office at 14.51 but the camera recorded me leaving and then re-entering the office a few times. The last time I left the office was 15.38 but I was not in there for the whole time. I saw the footage myself. Fits was the only person that was in the office alone for almost an hour. So, I don’t understand why I got accused of this.”
The applicant told Homsi that he had watched this security camera footage and that “the time frames I was accused of being in the office for were incorrect”. Homsi told him that he would advise Faljoun, but the applicant remained suspended from employment.
The applicant says that he next received a telephone call from Faljoun on 20 February 2023. He told Faljoun that “I had seen the footage and the accusations were incorrect”. Faljoun then told him that “Stockland had no evidence on me”. Faljoun offered to place him at a different employment site temporarily, but he declined the offer advising Faljoun that “I would wait until after the internal investigation as I knew I had not done what they were accusing me of”.
The applicant then received a letter from the respondent advising of allegations against him, to which he replied, denying those allegations. He next telephoned Swain on 1 March 2023 as he was by then “already very stressed” and suffering financially. He was told by Swain that “they were still investigating and they had found no evidence that I had done anything at this stage”. The applicant says:
“I asked him what if Stockland say that they don’t want us anymore and he told me they would be silly to do that because they cannot prove any wrong doings. George was present during the phone call and I had it on speaker.”
The applicant says that he next spoke to Swain by telephone on 4 March 2023. Swain told him that “the Stockland Risk Committee have deemed me a risk to work on the property”. Swain also told him however that there would be no disciplinary action against him as no misconduct had been found. The applicant questioned Swain and advises:
“He told me that they had asked Stockland but they had not received a response and as per contract they can request whoever they want on site. I got off the phone and just broke down. I didn’t know what to do. I felt very unsupported. They told me that there was no evidence against me yet I was still being punished. George was also removed from the site. I want to know why if there were other security guards in the office at the time the cameras were changed, one of them alone and he is still working at Stockland and has not been suspended or even questioned as far as I know.”
The applicant then received a letter from the respondent advising that he was to be moved to work for it at a different site. He says that he spoke to Swain:
“I then asked him if I was being used as a scapegoat. He hesitated then said, something like, yeah if you want to put it like that. I asked him again to put it in writing. I then received an email from Josh on the Monday. I then responded by asking him why if we were deemed a risk was it not put in the letter. He then denied telling me that he had ever said anything like that. I had him on speaker at the time and my family heard him say it. I then received another email stating what he had said. I have not had any contact with them since then.”
The applicant says that he now feels stressed that “I could be accused of something in the future even if I haven’t done anything”. He feels worthless, very distressed, and too scared to return to work. He is having sleeping issues and struggling to keep his social life active. He does not want to go out, especially to the Mall, which is his local shopping centre. He lacks motivation.
The applicant says that he has been informed by “some of the Security team” that technicians had looked at the relevant security cameras at the Mall and found “a system error”.
Attached to the applicant’s first statement are:
(a)    a text message from Faljoun to him on 18 February 2023 advising of him being “stood down with pay…pending an investigation relating to a CCTV matter”;
(b)    a text message from him to Swain on 6 March 2023 claiming that Swain had informed him by telephone “that Stockland risk management deemed myself and George a risk to work on there [sic] sites”, and asking that Swain confirm that in writing;
(c)    a text message from Swain to him on 6 March 2023 confirming that:
“I informed you our clients Risk Committee (Stockland Risk Committee) independently reviewed the matter and their clear decision and direction to Millennium was to remove you from Stockland Merrylands based on their risk assessment. Given they are a risk committee and engaged to review the commercial risk of activities on Stockland owned and managed properties, I in fact educated you on the role and purpose of that committee and that the decision to remove you was from that committee, this is standard commercial practice”
- the text message also refuses to confirm that the applicant had been “removed because you are a risk” - and it refers to:
“A clear and formal reference has been made to the contract [emphasis in original] clause of the binding service agreement between both parties, Section 3.5, and has been applied within the letter”;
(d)    the 20 February 2023 letter from the respondent to him “formally raising allegations of your recent unacceptable performance and behaviour”, and specifically alleging that the applicant accessed Farhat’s credentials without authorisation on both 8 February 2023 and 9 February 2023, and
(e)    the applicant’s response to the respondent’s 20 February 2023 letter (sent by text message to Faljoun on that date) in which he denies the allegations in the letter, requests that relevant security camera footage be reviewed, requests that his colleagues are questioned in order to confirm his actions, and advises that his “mental health is suffering” due to the allegations.

The applicant’s second statement is dated 28 March 2024 and found at page 2 of the applicant’s AALD. The statement confirms the truth and accuracy of the 21 March 2023 statement and largely provides an update regarding the applicant’s psychological condition. The applicant has experienced constant anxiety, he has suffered embarrassment and humiliation in the community, he has become socially withdrawn, he questions his self-worth, he suffers panic attacks, he suffers insomnia, he becomes irritable with family members, and he is unable to return to a working environment. He consults with his general practitioner monthly and with his psychologist every three weeks.
The second statement also repeats some of the factual matters raised in the applicant’s first statement, but it also relevantly:
(a)    attaches Homsi’s text message to the applicant at 7:09pm on 17 February 2023 advising that “U and George will be stood down with pay for a week” without any further explanation in the message except that “Use [sic] were in here the longest while” – the applicant complains that he was not given any notice or proper explanation in this regard, and he alleges a text message to be a highly unprofessional and inappropriate way of informing a worker of a suspension;
(b)    alleges that the applicant was being unfairly targeted as the text message trail between Homsi and him subsequent to 7:09pm on 17 February 2023 refers to him being in the security office for the longest period of time on 8/9 February 2023, whereas “Fits” was in fact in that office for far longer, and
(c)    raises cl 3.5 of the facilities management contract in place between the respondent and Stockland, which confuses the applicant as it allows a person guilty of misconduct, incompetence or negligence to be moved from the Mall, whereas the applicant was cleared of any misconduct.
Makdessi has also supplied a statement dated 26 May 2023 (found at page 21 of the ARD).
He confirms that he was working with the applicant on 17 February 2023 when the applicant received a text message from Homsi “advising him that he [Nabil] and I would be stood down for a week with pay”. The applicant then explained to him that they were both being investigated as they were in the security office when security camera footage had been tampered with on the night of a robbery at the Mall. He says that the applicant “appeared visibly upset” at the time.
He then says that the applicant and he were “kept in the dark” in relation to the investigation, and he noticed the applicant’s mental health deteriorating, with the applicant seeming downcast and distressed.
On 1 March 2023, he says that he heard the applicant’s telephone conversation with Swain (the applicant’s telephone being on speaker) in which Swain advised that the investigation was still ongoing but that no evidence of wrongdoing had been found. The applicant remained “very upset and anxious”.
On 4 March 2023, he says that he received a telephone call from Swain advising that he had been “stood down from my job even though the investigation had not shown any wrongdoing”. He says he spoke to the applicant and the applicant confirmed receiving “the same call”. The applicant told him that “Joshua had said that he [Nabil] was deemed a risk to work on the property”. He also says that he recalls “this greatly upset Nabil who was breaking down as he had done nothing wrong”.
He summarises:
“I have seen how visibly distressed and upset Nabil has become. I believe it was very unfair how the employer had kept Nabil in the dark, how unreasonably he had been treated to make himself feel already like he was already guilty…From my recollection, Nabil was never offered any chance to have a proper meeting with the employer regarding these accusations, an opportunity to say his side of the story and for a support person present during any meetings regarding these accusations.”
The ARD and the applicant’s AALD also contain:
(a)    a claim form completed by the applicant on 7 March 2023 (at page 106 of the ARD) - in which he provides the following description of his injury:
“On the 18/02/2023 I was suspended with Pay from my role at Stockland Merrylands due to Alleged Misconduct for CCTV Tampering. Ever since that has happened to me i have been depressed, stressed and have anxiety as i have never been accused of anything like this before. on 3/3/2023 I received a call that the Stockland Risk Committee have deemed me a risk and that i am no longer to work at Stockland Mall in Merrylands. This caused me to break down and go into depression even more as I gave my all at my job and was never guilty of mis conduct [sic]. My company millennium Security Group did not Fire me as there was no evidence however i was Deemed a Risk to Stockland with No explanation. I am now in debt to my family and partner and am on edge as everything is falling apart in my life.”;
(b)    a letter from the respondent to the applicant dated 6 March 2023 entitled “Misconduct Management Process (MMP) – Formal Allegations Notice Outcome Letter” (at page 114 of the ARD) - the letter:
(i)confirmed that the misconduct management process commenced on 17 February 2023 and that the applicant was provided with a formal notice on 20 February 2023;
(ii)confirmed that “serious allegations of misconduct” were detailed in the formal notice;
(iii)confirmed that following an investigation, none of the allegations were substantiated, and as a result, no disciplinary action was being pursued;
(iv)confirmed that Stockland had provided the respondent with written notice in accordance with cl 3.5 of the facilities management contract in place between them, indicating its “clear instruction to remove you, with immediate effect, from performing Security service activities on behalf of Millennium at the Stockland Merrylands site” - it was also confirmed that the respondent was “obligated under the contract of services to comply with the Principals request in this respect”; and
(v)confirmed that the applicant’s suspension would conclude, and that effective from 7 March 2023, he would be employed at a different facility at Erskine Park, and
(c)     medical evidence (being reports from a medico-legal psychiatrist (Dr Robertson), reports from the applicant’s treating psychologist (Mustafa Alameddine), as well as clinical notes and certificates of capacity from the applicant’s treating general practitioner, Dr Aboud)) - considering the agreements between the parties (referenced at paragraphs 11-15 above), I do not intend to detail this medical evidence – I have considered the evidence in its entirety and it has only limited relevance to the only issue that I need to determine - I will therefore refer to relevant aspects of it when specifically directed to those aspects during the parties’ submissions.

Respondent’s evidence

The respondent relies upon a factual report from Allied Universal Investigations dated
17 April 2023 (from page 43 of the Reply), and particularly its annexures (from page 51 of the Reply).
I have considered the report from Allied Universal Investigations, but give little weight to the actual report. The comments in the report are essentially matters for me to determine. They provide little more than a summary of the evidence (11 annexures) collected by the investigators. It is to be noted however that:
(a)    Homsi refused to provide a statement to the investigators;
(b)    Farhat refused to provide a statement to the investigators – he also refused to provide them with any relevant CCTV footage, and
(c)    the investigators were not provided with any report prepared by or on behalf of the respondent or Stockland - in relation to their investigations into the allegations of misconduct levelled against the applicant.
Faljoun provided the investigators with a statement dated 12 April 2023, and it is found at page 63 of the Reply.
He says that, being the respondent’s account manager for Stockland, he received a telephone call on 17 February 2023 from Farhat regarding the lack of CCTV footage available in relation to a robbery which had occurred at the Mall. He says that Farhat “reported that his credentials were used to alter the CCTV recording times and reported that it was done by someone other than himself”, as well as that “it was alluded that the security team may have been involved”. He spoke to Swain and then visited the Mall.
When he arrived at the Mall, he had a discussion with Homsi about the robbery. The applicant was present during that discussion. He says that he was advised that the robbery had occurred at the EB Games shop after the shop’s staff had turned off the shop’s alarm following complaints to them from an “unknown man” who had advised the staff that the alarm was being activated at night and annoying the cleaners. He says that he reviewed the CCTV footage but was unable to identify the “unknown man”. He noticed however that the CCTV cameras were not operational at the time of the robbery, in the security room as well as outside the EB Games shop.
He says he “spent the rest of the day investigating the matter”. He then arranged a meeting between himself, Gazi Yalcinkaya (from Stockland), Angela (from Stockland), and Farhat (present by Teams link). He reports the following from that meeting:
“Walid advised he had used his password to log into the computer when the cameras had been down on the 8^th of February. Walid’s access remained logged in so this would have given anyone access to the system but not his credentials…During the meeting I was advised that there was footage of a few guards, namely Nabil, George, Fitzy and Majed entering and leaving the office on the dates the cameras had been altered. The client advised us that Nabil and George had been in the office when the cameras were altered and that George had left the office at a point, leaving Nabil in the office alone…We asked Walid if there was anyone in the office when he used his password. He said no. We then asked him if he had provided his password to anyone. He said no. He was then asked if he had written his password down anywhere and he advised us that he had stored it in his notes on his phone, but he did not know how anyone would have gotten it from his phone…After the meeting had finished, I received an email from the client confirming discussions and outlining the periods where the footage had been altered with corresponding times where footage had showed the guards accessing the security office where the system is located.”
He says that following the meeting, he returned to the security office to meet with his team. He says:
“I assured the team that the company and I would ensure a thorough and fair investigation process into what is purely allegations by the client, and that they would be fully supported myself, afforded procedural fairness and given a right of response in the matter.”
In the afternoon however, he says that he received another telephone call from Farhat advising him that the applicant and Makdessi needed to be “stood down until the matter could be thoroughly investigated and an outcome was made available from Stockland head office”. He says that he joined Swain and Steven Pierce into the telephone call, and Farhat then confirmed his advice to all of them.
He then called the applicant and Makdessi into the security office, and he records:
“I prefaced my conversation with an explanation that Millennium was obliged contractually to adhere to the requests of the client and that policy and procedures underpinned any action taken or proposed to be taken my [sic] myself at the request of the client. I then advised them that the client had communicated an instruction that they be stood down with full pay pending the outcome of the investigation. I explained the next steps in the process, including the issuing of allegation notice, as is prescribed by company policy and that it was simply a formality that needed to be undertaken and was their opportunity for right of response. The guards confirmed understanding of the procedures that were to be followed and commented that they were aware it was company protocol and procedure we had to follow as part of our contract with Stockland.”
He confirms that he sent an allegation notice by email to the applicant on 20 February 2023. He says that he did not want to send it out earlier as “I was conscious of the day after the incident falling on a weekend and having regard to the guard’s welfare, the notice was sent the next business day.” He then telephoned the applicant later on that day to inform the applicant that he was available if the applicant needed to talk to him at any time, and to offer support to the applicant “through the process”.
He says that he then met with the applicant on 24 February 2023, and offered to place him at another employment site. He says that his offer was declined.
Faljoun then addresses certain comments made by the applicant in his 21 March 2023 statement. Of relevance:

(a)    he denies “blasting” the applicant (see paragraph 21 above), advising that at the time of the relevant conversation, he was not aware of any allegations being made against the applicant by Stockland;
(b)    in response to the applicant’s allegation (extracted at paragraph 26 above), he simply re-iterates that Stockland “has provided record of timeframes where Nabil was observed, through CCTV footage, to have been in the office at the times when footage has reportedly been altered”, and
(c)    in relation to the applicant being told that “a system error” was the reason for the CCTV cameras not functioning at the time of the relevant robbery (see paragraph 33 above), he says that he was informed that technicians had been engaged by Stockland, but had no knowledge of any identified system errors.

Swain also provided the investigators with a statement dated 13 April 2023, and it is found at page 75 of the Reply.
Swain advises that Stockland had alleged that the applicant and Makdessi “had tampered with the CCTV system”, which was a serious allegation that the respondent was “obligated to investigate”. Further, apart from the investigation, “Nabil and the other employee were stood down on full pay during the investigation which was required in this case as per the HR protocol of the business”.
The respondent therefore conducted an “exhaustive” investigation during which the applicant was stood down from his employment on full pay. At the conclusion of the investigation, Swain advises:
“We were unable for a number of reasons to substantiate any of the allegations provided by Stockland Merrylands. They alleged that Nabil was in or around the Security Office at the times the cameras were changed which could be substantiated by CCTV. Millennium’s client did not provide evidence as to the times that the cameras were changed or any additional evidence where the allegation in our view could be satisfactorily substantiated…The client then took the allegations to their internal risk committee in which that committee reviewed the matter and ultimately made the decision to instruct Millennium to remove Nabil and the other employee from the site permanently…We explained to Nabil that we could not substantiate any of the allegations and had no reason to pursue formal disciplinary action, his employment as a result of this would be unaffected however Millennium’s client has instructed his removal from the site permanently exercising their rights under the contract of services…Our clear direction to Stockland was that both employees should be returned to the site but ultimately it is their decision as to who works on their properties and as they are our client we need to honour our contract and their decision to exercise rights under the contract of services.”
Swain also advises that the applicant had not been “deemed as a risk”.
Swain then also addresses certain comments made by the applicant in his 21 March 2023 statement. Of relevance:
(a)    in response to the applicant’s allegation (extracted at paragraph 26 above), he says he is unable to respond and that the respondent’s “investigation and detail of the timings is retained in the brief of information dated 1 March 2023”;
(b)    in relation to his telephone conversations with the applicant on 1 March 2023 and on 4 March 2023 (see paragraphs 29-30 above), he denies advising the applicant that Stockland “would be silly to do that” in reference to the possibility of the applicant not being able to continue to work at the Mall, and he also denies advising the applicant that Stockland had deemed the applicant to be “a risk to work on the property”, and
(c)    in relation to the applicant’s allegation (extracted at paragraph 31 above), he says that he does not remember having a telephone conversation with the applicant on 6 March 2023, but does remember having two telephone conversations with the applicant on 4 March 2023 – he categorically denies comparing the applicant to a scapegoat.
The report from Allied Universal Investigations also contains an undated email (presumably the one sent to him on 17 February 2023 – see paragraph 49 above) to Faljoun from Gazi Yalcinkaya stating:
“As discussed, please find attached the requested information exported from Walid:
Reviewing the CCTV camera facing the security office shows the following guards accessing the security office after I left at 508pm:
-Majed Homsi in at 525pm leaves the office at 533pm
-George enters the office 531pm
-Nabil Dimian & Fitz enter at 537pm
-George, Nabil & Fitz leave the security office at 553pm
Other changes to the CCTV were made at 256pm on the 09/02/2023, also accessed by my username & password. This also wasn’t me. Accessing the security office was at this time:
-Majed Homsi & Nabil Dimian at 251pm, Majed leaves the office at 256pm, Nabil leave the office at 338pm”.
Otherwise, the Allied Universal Investigations report contains a number of other annexures, which I have considered, but found of little relevance to the issue I need to determine. I will detail them further if specifically directed to relevant aspects of them during the parties’ submissions.
The respondent also relies upon the facilities management contract between itself and Stockland dated 10 June 2021 (found at page 7 of the respondent’s first AALD). The principal in the contract is Stockland, the contractor in the contract is the respondent, and the project manager in the contract is nominated (in the “Key Details” section of the contract) to be Tim Feenstra (although cl 1.1 of the contract allows Stockland to nominate different project managers from time to time to replace the person nominated in the “Key Details” section). The contract is lengthy, and having considered its clauses, I believe that the vast majority of them are not relevant to the issue that I need to determine. I will detail clauses of the contract if they are specifically submitted to be relevant during the parties’ submissions, but otherwise, I have found the following clauses to be relevant:
(a)    cl 1(a) of the background recitals notes that the principal and the contractor “promise to perform and complete their respective obligations in accordance with the Contract”;
(b)    cl 2.2 requires the principal to allow the contractor to perform the contractor’s activities in accordance with the requirements of the contract;
(c)    cl 3.1 provides that the project manager is an agent of the principal when giving directions under the contract – the contractor must then comply with any such direction “given or purported to be given under a provision of the Contract”;
(d)    cl 3.5(a) reads as follows:
“The Project Manager may by notice in writing instruct the Contractor to remove any person from the Contractor’s Activities who in the reasonable opinion of the Project Manager is guilty of misconduct or is incompetent or negligent”;
(e)    by cl 9.10, the contractor is to ensure that no conflict of interest exists or is likely to arise in the performance of its contractual activities – the contractor is required to notify the project manager immediately in writing if a conflict of interest or a risk of such a conflict of interest arises;
(f)    under cl 15.2(g), the principal is entitled to issue a notice of default to the contractor if the contractor does not comply with a direction by the project manager “made in accordance with the Contract”, and
(g)    cl 16 provides a detailed procedure for the resolution of disputes arising between the contractor and either the principal or the project manager “in respect of any fact, matter or thing arising out of, or in any way in connection with, the Contractor’s Activities or the Contract” - the procedure involves notices in writing being provided to the project manager, and the project manager and the contractor then being required to “meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference”.

Finally, the respondent also relies upon medical evidence in the Reply and the respondent’s second AALD. However, as advised when referring to the medical evidence relied upon by the applicant, considering the agreements between the parties (referenced at paragraphs 11-15 above), I do not intend to detail this medical evidence – I have considered the evidence in its entirety and it has only limited relevance to the only issue that I need to determine - I will therefore refer to relevant aspects of it when specifically directed to those aspects during the parties’ submissions.

Respondent’s submissions

The respondent’s submissions have been recorded. I will not go through them in detail.
The respondent initially refers me to the applicant’s claim form (see paragraph 43(a) above) and the clinical notes from his general practitioner, Dr Aboud, on 2 March 2023 (found at page 162 of the Reply), where the history recorded is:
“suspended by his work with pay and allegations that he was responsible for CCTV fault which turned out to be technical has anxiety and insomnia since this happen [sic] and felt victimised offered counselling incident happened on 17.2.23”.
The respondent notes that given this contemporaneous material, its two actions relating to transfer (first, offering to place the applicant in a different position while it investigated his alleged role in the robbery, and second, transferring him away from the Mall after
6 March 2023) might not be considered to be causative of the applicant’s psychological injury, because the material is clear that the injury arose from its disciplinary actions which occurred on 17 February 2023 and 18 February 2023. However, it submits that it is only necessary for it to prove that its actions in relation to discipline or transfer were reasonable (rather than its actions in relation to both of them) in order for it to succeed with its defence pursuant to s 11A of the 1987 Act.
When questioned by me as to whether there was any medical evidence suggesting that the respondent’s actions (through Faljoun on 24 February 2023) in offering to place the applicant in a different position while it investigated his alleged role in the robbery were causative of his psychological injury, it could not point to any such evidence.
The respondent then goes through a timeline of the events that occurred from
17 February 2023, in order to make the following points:
(a)    there was “at least a degree of suspicion” that the applicant may have been involved in the robbery as there was CCTV footage outside the security room that the applicant was “in and around the room at the time” when Farhat’s credentials were used to change CCTV recording times;
(b)    the applicant admitted to Faljoun that he had been in the security office at the relevant time, but denied any tampering with the CCTV cameras – see paragraph 24 above;
(c)    it must have been reasonable for the applicant to have been stood down and for an investigation to have taken place in those circumstances;
(d)    the applicant understood the nature of the allegations against him – they were fully explained to him by Swain – see paragraph 25 above;
(e)    the respondent supported the applicant during the investigation into his alleged role in the robbery – it also offered to place him at another site temporarily during the investigation;
(f)    the respondent was clear to the applicant that it was Stockland which had demanded that the applicant not work further at the Mall – Swain’s evidence should be accepted that he did not refer to the applicant as a “risk” when discussing Stockland’s position in this regard, especially considering that he corrected any misinterpretation by the applicant with respect to the term “risk”, and confirmed to the applicant Stockland’s processes, by his 6 March 2023 email (see paragraph 34(c) above);
(g)    there was nothing that the respondent could have done to review Stockland’s decision that the applicant not work further at the Mall - the applicant says (see paragraph 30 above) that Swain told him that they had questioned Stockland - in any case, the respondent submits that any representations that it made to Stockland in this regard would not have made any difference to Stockland’s decision as “Stockland had the whip hand”, and
(h)    it was a term of the applicant’s contract with the respondent that the applicant could be removed from the Mall to work at another site for operational reasons – in this regard, cl 9 of that contract (found at page 128 of the Reply) is the reference being relied upon by the respondent.
The respondent submits that its processes and actions in standing down and investigating the applicant, offering him a transfer during that investigation, and then attempting to transfer him to another site following the investigation, were entirely reasonable. It also submits that reasonableness needs to be viewed in a commercial context, and that it was not unreasonable for it to comply with Stockland’s direction that the applicant not work further at the Mall.
The respondent also submits that even if parts of its processes were not reasonable, the process as a whole was reasonable, and as a result, it makes out its defence pursuant to s 11A of the 1987 Act in accordance with Department of Education & Training v Sinclair [2005] NSWCA 465 (Sinclair).
Finally, the respondent submits that as a matter of comity, I should follow the decision of Member McDonald in Makdessi v Millennium Security Specialist Services Pty Ltd [2024] NSWPIC 88 (Makdessi), as it deals with “substantially the same factual matrix” as the applicant’s claim.

Applicant’s submissions

The applicant’s submissions have also been recorded. I will not go through them in detail.
The applicant submits that the “height” of the respondent’s case is that it reasonably did what it was told to do by Stockland. In circumstances however where there is no evidence produced by Stockland, I could not find the respondent’s actions to be reasonable.
The applicant relies upon the following evidence (alleged by him to be undisputed) in support of his submissions as to the unreasonableness of the respondent’s actions:
(a)    leaving aside the dispute as to whether Faljoun “blasted” the applicant during their first meeting when he arrived at the Mall on 17 February 2023, that meeting discussed serious criminal activity inappropriately - see paragraph 21 above;
(b)    during a later meeting between Faljoun and the applicant on 17 February 2023 (see paragraphs 24-25 above), the applicant was interrogated about these serious criminal activity allegations, initially in front of another person (Homsi), without any prior notice or explanation, without any support person present, and with no evidence being presented to him – he was solely told that the allegations had been made by Stockland - the applicant was clearly given inadequate time to deal with very serious allegations;
(c)    Swain then advised the applicant (see the extract quoted at paragraph 25 above) that the respondent “may look at suspension depending on the outcome of an internal investigation” - the applicant did not believe that he was in any trouble at that stage, but he was stood down later on the same day – the respondent therefore did not comply with Swain’s guarantee to the applicant, in that either no investigation took place prior to the applicant being stood down, or if an investigation did take place, it was “the most cursory of investigations”;
(d)    the applicant was stood down by a text message from Homsi – not Faljoun or Swain (who had convened their earlier meetings);
(e)    the text message which the applicant received on 17 February 2023 standing him down (see paragraph 36(a) above), advised that the reason why the applicant and Makdessi (and not others) were stood down was that during the relevant times, they were in the security office for the longest period – however, the applicant disputes this fact (see the extract quoted at paragraph 26 above) and he is the only one that has given evidence in the proceedings regarding actually viewing the relevant security camera footage from outside the security office - the applicant submits that as a result, “the basis upon which he is told he is being stood down is false”;
(f)    the applicant told Homsi about “the time frames I was accused of being in the office for were incorrect” (see paragraph 27 above), but there is no evidence that the respondent investigated the relevant timings (or indeed actually watched the relevant CCTV footage), and there is also no evidence before me as to those timings, except the applicant’s evidence;
(g)    there is a conflict between Swain’s evidence and Faljoun’s evidence regarding the reason for the applicant being stood down – Faljoun (see paragraph 51 above) says he was told to do so by Stockland, and Swain (see paragraph 57 above) says that it was in accordance with the respondent’s “HR protocol” - the applicant submits that if the respondent cannot say why the applicant was stood down, its actions in doing so could not possibly be reasonable;
(h)    Faljoun (see paragraph 53 above) says that he did not send the allegations notice to the applicant on the weekend as he was concerned for the applicant’s welfare – yet despite this concern, he did send the applicant an email on the weekend confirming that the applicant was stood down (see paragraph 34(a) above);
(i)    the respondent does not lead any evidence as to its reasons for transferring the applicant from his work at the Mall except that Stockland told it to do so - there is no evidence as to why Stockland requested this (when the applicant had been exonerated from any wrongdoing), and the notice that it provided to the respondent in this regard (see paragraph 43(b)(iv) above) is also not in evidence;
(j)    there is no evidence that the applicant received any opportunity to provide a response to the possibility of him being transferred, and
(k)    there is no evidence that cl 3.5(a) of the facilities management contract between the respondent and Stockland (see paragraph 63(d) above) had been validly complied with by Stockland when it instructed the respondent to transfer the applicant from his work at the Mall - the respondent could have pointed this breach of contract out to Stockland but there is no evidence that it did so - further, Swain “lied” to the applicant about the effect of cl 3.5(a) when he told the applicant (see paragraph 58 above) that the respondent needed to “honour our contract” with Stockland in complying with its decision not to allow the applicant to work at the Mall.
The applicant also relies upon the judgement of Basten JA in Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 (Jeffery) and submits that I need to consider the conduct of Stockland when considering whether the actions of the respondent were reasonable, especially where the respondent allowed Stockland to breach its contract with the respondent, and where the respondent did not protect its employee (the applicant) from that breach.
Finally, the applicant submits in relation to the decision in Makdessi:
(a)    the decision is on appeal;
(b)    the facilities management contract between the respondent and Stockland was not in evidence in the decision, and
(c)    the facts that the decision was based on are quite different from the facts in the applicant’s claim, especially as Makdessi did not attend the same meetings on 17 February 2023 as did the applicant.

Respondent’s submissions in reply

These submissions have also been recorded. I will not go through them in detail.
The respondent confirms that the comments of Basten JA in Jeffery were obiter. It submits that if Stockland’s actions were unreasonable, it does not automatically follow that the respondent’s actions were unreasonable. In such circumstances, the actions of Stockland are just one matter to be considered.

FINDINGS AND REASONS

Whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant's psychological injury was caused by reasonable action taken or proposed to be taken by it with respect to transfer and/or discipline

Section 11A of the 1987 Act reads as follows:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent bears the onus of proof in establishing its defence under s 11A of the 1987 Act: Pirie v Franklins Limited [2001] NSWCC 167.
Neither party has submitted that the respondent’s processes and actions in relation to the applicant on and after 17 February 2023 were not actions taken with respect to discipline and transfer. The actions involved standing the applicant down from his employment, investigating his alleged role in a robbery at the Mall, and then transferring him away from his work at the Mall notwithstanding that the relevant investigation exonerated him from any wrongdoing. The applicant has conceded (see paragraph 11 above) that his psychological injury was wholly or predominantly caused by these actions.
The respondent will therefore be entitled to rely upon a defence pursuant to s 11A of the 1987 Act if it can prove that these actions were reasonable.
Burke CCJ first considered the essence of reasonableness in relation to s 11A of the 1987 Act in Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454 (Melder), in which he questioned (at [458]):
“The problem is what is it that must be reasonable? The action or the way in which it is done or both? And in what frame of reference does one assess the reasonableness of the action? Is it from the subjective perspective of the employer? From the subjective perspective of the worker? Or subjectively reasonable vis-a-vis both? Or is it an objective evaluation of the relevant facts? If so, what are the relevant facts?”
In Buxton v Bi-Lo Pty Ltd [1998] NSWCC 13 (Buxton), Walker CCJ referred to Melder when he stated (at [85-87]):
“As Judge Burke points out, the test of reasonableness in s11A is a very slippery concept indeed. Many questions are raised by Judge Burke. Is the test objective or subjective? Is that objectivity or subjectivity to be determined from the perspective of the employer or the employee or the man on the Clapham Omnibus? Does the test of reasonableness apply to the whole of the transaction between employer and employee or should it be narrowly confined to the final act in what could be a lengthy chain of events?
Strouds Judicial Dictionary notes that the word ‘reasonable’ has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor called on to act reasonably knows or ought to know: Re a Solicitor [1945] KB 368 at 371.
In the Australian context the word ‘reasonable’ is frequently declared to mean ‘reasonable in all the circumstances of the case’ Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110 at 116.”
Walker CCJ further answers his questions (at [92-94]):
“I agree with the argument of his Honour Judge Burke in Melder's case that it is the action referred to in s11A(1) that is relevant not the whole history of the relationship. I also agree that what went before and after it may well be a guide to its reasonableness but is not part of it.
It may well be argued that the long established principle of interpreting the Act in favour of the worker could well apply to interpret reasonableness from the worker's perspective.
However, s11A can hardly be said to be beneficial in its intent. On the contrary it is a privative provision clearly aimed at limiting workers' rights.”
Finally (at [97]), Walker CCJ asks the question – “What would a reasonable observer think about all this?” in order to determine reasonableness.
The objective nature of the reasonableness test was also confirmed by Armitage CCJ in Ritchie v Department of Community Services (1998) 16 NSWCCR 727 (Ritchie), in which his Honour approved and adopted the reasonableness test set out (admittedly in the context of a different statute) by Bowen FCCJ and Gummow FCJ in Secretary of the Department of Foreign Affairs and Trade v Styles & Anor (1989) 23 FCR 251:
“The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience…The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.”
Armitage CCJ then stated in Ritchie (at [746]):
“it is apparent that the test in this case is an objective one, where one must weigh the consequences of the respondent’s conduct against the reasons given for it, and I have done so. It follows of course from the objective nature of the test that evidence given by the applicant as to the perceived unreasonableness of the respondent’s conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
Consistent with these decisions, it has been held that reasonableness is not established on the basis that an employer complied with its own protocols unless the protocols are objectively reasonable - see Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139 and Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65.
The Court of Appeal in Sinclair (per Spigelman CJ) stated that the formulation in s 11A of the 1987 Act “extends to the entire process involved in, relevantly, ‘discipline’ including the course of an investigation”. The appeal in that case was allowed, Spigelman CJ stating (at [97]):
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.”
The Court of Appeal further considered reasonableness within the context of s 11A of the 1987 Act in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie). The relevant observations of Sackville AJA include:
(a)    in accordance with Sinclair, actions with respect to discipline usually involve a series of steps – a broad approach is to be taken, and it is the entirety of the conduct or process with respect to discipline, including the course of an investigation, that needs to be considered;
(b)    in accordance with Jeffery, the reasonableness test is objective;
(c)    his Honour (at [53]) stated that Jeffery establishes “that an employer’s action with respect to discipline is not necessarily reasonable simply because the action (in this case the transfer of a cleaner from a school) is taken in compliance with a contractual obligation owed to a third party” - his Honour quoted Basten JA in Jeffery as observing “that the reasonableness of the employer’s action in transferring the cleaner had to be ‘assessed by reference to the facts giving rise to the transfer’”;
(d)    (at [59]) – “It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline”;
(e)    (at [59]) – “Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action [emphasis in original] that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury”;
(f)    (at [59]) – “The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances”;
(g)    reasonableness is to be determined according to what was known by the employer at the time of its action, or what could have been ascertained by it through reasonably diligent inquiries or the exercise of reasonable care - many actions with respect to discipline are necessarily taken without an employer having the opportunity to establish the full facts, and (at [63]) a “test that assesses reasonableness by reference to facts that could not have been known at the time the critical step is taken invites an extensive factual inquiry potentially far removed from the fairness or integrity of the actual decision-making process”, and
(h)    evidence of events that post-date the relevant action can however be material to the question of reasonableness if that evidence sheds light on the facts known to the employer or the facts reasonably ascertainable by it at the time the action was taken.

In Jeffery, a cleaner was employed by an employer to work at a school. There were complaints about the cleaner’s conduct, and in accordance with a direction given by the school’s principal, the cleaner was transferred by the employer to a different school. He claimed the employer’s actions in this regard to be unreasonable.
Hodgson JA determined that the question as to whether the school principal’s direction was reasonable is a relevant factor but it would not be essential for the employer to prove the direction to be reasonable action taken by the school principal for it to be found that the employer had undertaken reasonable action. His Honour stated (at [4]):
“Such a finding could for example, in my opinion, conceivably be open on the basis that the respondent reasonably saw the direction as based on reasonable concerns of the school which either were adequately investigated or were such that it was unlikely they could be allayed by further investigation, and reasonably considered transfer as an option carrying little detriment to the worker while resolving a situation of concern and conflict. I am not asserting that it would be sufficient that the transfer appeared [emphasis in original] reasonable to the employer. The assessment of reasonableness is an objective one for the Commission; but in my opinion it is the reasonableness of action taken by or on behalf of the employer that is in issue, not the reasonableness of action taken by any other person.”
In a separate judgment, Basten JA concluded (at [44], [46-48], [52], and [57]):
“As appears from the extracts from the reasons of the Deputy President set out above, he in fact followed the second approach, namely that the respondent acted reasonably because it complied with a contractual obligation. This approach, in my view, demonstrated legal error. His Honour’s recognition that there was ‘an element of unfairness in a situation where a third party can dictate to an employer that one of the employer’s employees must be moved from a particular worksite’ invited further consideration as to whether there might not also be a lack of reasonable action in such circumstances for the purposes of s 11A. Section 11A is a provision which removes a right to compensation otherwise available in respect of a psychological injury arising out of or in the course of employment. It is concerned with reasonable action on the part of an employer which may have such a consequence. The reasonableness of the action should properly be assessed by reference to the facts giving rise to the transfer, rather than the contractual relationship between the employer and a third party. The contractual relationship is not, of course, irrelevant: it may mean that the conduct of the third party becomes a relevant factor in assessing the reasonableness of the transfer.”
“Where the employer takes action on the basis of concerns of the education authority, the reasonableness of the action may need to take account of two elements. The first is whether it is contractually reasonable for the employer to accept an obligation to comply with a direction given by a responsible officer of the education authority. The second is whether the direction itself is reasonable in the circumstances. There was no suggestion in the present case that the contractual arrangement was not a reasonable one.
In the absence of an improper motive, the officers of the employer may be acting reasonably in complying with what they believed were the contractual obligations of the employer. Nevertheless, if the direction given by the school principal were unreasonable, the action of transferring the employee may itself not be reasonable. The statutory purpose is effected by having regard to the action of transfer as a whole, including, where part of the responsibility is exercised by a third party with the agreement of the employer, the reasonableness of the conduct of the third party.
Against this approach it may be argued that a reasonable contractual arrangement, which devolves part of the responsibility on to a third party, may leave the employer in an invidious position where, in the case of an unreasonable direction, it will either incur liability to its employee, or will incur liability to the third party for breach of contract. However, that concern cannot override the clear statutory purpose requiring that the reasonableness of the transfer be judged in accordance with all the circumstances involved. The practical answer is that an employer which accepts a contractual obligation to deal with its employees at the behest of a third party might be expected to negotiate an indemnity if, acting in accordance with its contract, it may incur a statutory liability to an employee.”
“A purposive approach to the operation of s 11A, in the circumstances of this case, therefore required the Deputy President to assess the reasonableness of the action of the school principal in directing a transfer. That would have required an additional finding, which was not made by the Deputy President. The reasoning of the Deputy President in this regard was restricted to a conclusion that the officers of the employer acted upon a contractual obligation to transfer the appellant and did not otherwise fail to act reasonably in effecting the transfer.”
“The nature of the inquiries which may need to be made by an employer in relation to allegations of inappropriate conduct in a workplace, will no doubt vary depending upon the contractual circumstances, the nature of the workplace and the nature of the allegations. Whether it is reasonable for an employer to move a person from a workplace without any attempt to determine the validity of allegations, beyond ascertaining that they are denied by the worker, will also be a matter for judgment in the circumstances of the particular case.”
In another separate judgment, Rein J concluded (at [84-86]):
“Overall I am persuaded that the Deputy President in considering the reasonableness of the Respondent’s conduct in this case, treated the fact that the Respondent had received a direction which it was contractually obliged to follow as an overriding consideration and hence has fallen into error.
In the judgments of Hodgson JA and Basten JA can be discerned two differing views on how reasonableness is to be determined in circumstances where the employer has agreed to accept a direction from a third party as to action to be taken against an employee. Basten JA is of the view that an employer cannot establish reasonableness pursuant to s 11A unless it establishes that the third party has acted reasonably and Hodgson JA is of the view that the employer’s conduct can be reasonable even if the third party has not acted reasonably, provided the employer has itself acted reasonably in assessing the validity of the direction by the third party.
It follows from what I have said in [82] and [83] above that, in my view, if the employer relies solely on the fact that the third party issued a direction, this will not establish reasonableness on the part of the employer for the purposes of s 11A of the Act, but if the employer believes on reasonable grounds that there was a proper basis for the third party’s direction, then this could be sufficient.”
Rein J also listed (at [82]) nine matters to be taken into account in assessing the reasonableness of the employer’s actions in complying with the school principal’s direction:
“(1) The nature of the complaints made and the material available to support them;
(2) The express contractual arrangements between the third party and the employer, and whether there was an implied term requiring any rights given to the third party to be exercised only on proper grounds;
(3) Whether there was a proper basis in fact for the third party’s direction;
(4) Whether the employer’s relevant officers believed on reasonable grounds that there was a proper basis for the third party’s direction;
(5) What steps if any, were practically available to the employer to either prevent the third party from issuing a direction or to persuade the third party to withdraw the direction; and what steps were taken;
(6) The seriousness of the action to be taken i.e. transfer as opposed to dismissal;
(7) The form of the investigation by the third party and or the employer and of the communication to the employee of complaints and of the action determined to be taken;
(8) Whether there existed other factors extraneous to the direction from the third party that lead the employer to take the impugned action, that were not reasonably taken into account;
(9) The conditions of the contract between the employer and employee.”
The respondent submits (see paragraph 70 above) that the reasonableness of its actions in standing down the applicant on 17 February 2023, and in transferring him from his work at the Mall on 6 March 2023, need to be viewed in a commercial context having regard to its commercial relationship with Stockland. I however intend to view the reasonableness of its actions in accordance with the authorities discussed above, especially Jeffrey, which involves not dissimilar facts to the facts in the applicant’s case. In my view the commercial context of the respondent’s actions is irrelevant if those actions are otherwise not reasonable in accordance with the objective test laid down in the authorities.
Applying the discussed authorities, I have no difficulty at all in finding that the respondent’s actions in transferring the applicant from his work at the Mall were not reasonable.
While the applicant’s employment contract with the respondent allowed it to remove him from his work at the Mall to work at another site for operational reasons (see paragraph 69(h) above), it still needed to act reasonably in this regard. The applicant had been cleared of any wrongdoing, and according to Swain (see paragraph 58 above), the respondent had provided a “clear direction” to Stockland that he would be returning to work at the Mall as a result.
Swain’s sole explanation in his statement evidence for transferring the applicant from his work at the Mall was that the respondent needed to “honour our contract” with Stockland, who had made a decision “to exercise rights under the contract of services” and instruct the respondent to remove the applicant from the Mall. This evidence is clearly consistent with the text message that Swain sent to the applicant on 6 March 2023 (see paragraph 34(c) above) as well as the letter from the respondent to the applicant dated 6 March 2023 (see paragraph 43(b)(iv) above). The text message and the letter also specifically refer to cl 3.5 of the facilities management contract between the respondent and Stockland as providing the justification for the respondent’s action.
The difficulty for the respondent is that cl 3.5 (see paragraph 63(d) above) only allows Stockland to remove the applicant from working at the Mall by notice in writing if the applicant is guilty of misconduct, incompetence, or negligence (in the opinion of the project manager).
There is no evidence whatsoever that Stockland correctly invoked cl 3.5 when it removed the applicant from working at the Mall. Specifically, the necessary notice in writing is not in evidence, and there is no evidence from the project manager as to his or her opinion. The only evidence available suggests that the project manager was Tim Feenstra, but there is no statement from him. Further, there is no evidence before me of any misconduct, incompetence, or negligence of the applicant. Indeed, the evidence is that the applicant was cleared of any misconduct allegations.
Stockland is required under cl 2.2 of the facilities management contract (see paragraph 63(b) above) to allow the respondent to perform its activities in accordance with the requirements of the contract, and I have no evidence that the requirements of the contract (in accordance with its cl 3.5) were complied with by Stockland.
In these circumstances, I can only conclude that more probably than not, Stockland breached the facilities management contract when it directed the respondent to remove the applicant from working at the Mall. Certainly, without substantial further evidence of compliance by Stockland with cl 3.5 of the contract, the respondent cannot show Stockland’s actions in this regard to be reasonable, and I so find.
I note in this regard that pursuant to cl 3.1 of the facilities management contract (see paragraph 63(c) above), the respondent was required to comply with directions given by Stockland under a provision of the contract, but I have no evidence of a validly given direction (pursuant to cl 3.5 of the contract) in this regard.
As a result, Stockland was not complying with its contractual obligations when it issued the direction, and I therefore reject any argument by the respondent that it was required to act in accordance with the direction. Even if Swain believed that he was complying with contractual obligations and acting reasonably in complying with Stockland’s direction, I find such a belief to be objectively unreasonable, having regard to the evidence of the contractual terms before me and the lack of evidence that Stockland complied with cl 3.5 of the relevant contract when it issued the direction. In this respect, I rely upon the reasoning in Heggie (see paragraph 92(d) above).
Applying the reasoning of Basten JA in Jeffery, Stockland’s actions as being unreasonable in this regard is important in evaluating the reasonableness of the respondent’s actions. Further, to use Basten JA’s language (see paragraph 95 above), I find it not to be contractually reasonable for the respondent to accept an obligation to comply with the direction given by Stockland (given that the direction was not given in accordance with the contract) and I also find the direction itself to be not reasonable in the circumstances.
Also applying the reasoning of Hodgson JA or Rein J in Jeffery, the respondent’s conduct in transferring the applicant cannot be seen to be reasonable as:
(a) per Hodgson JA - it has not reasonably seen the direction as based on reasonable concerns, which would necessarily involve an assessment of the reasonable concerns and the validity of the direction – but there is no evidence that it assessed the contractual validity of the direction at all – Swain’s evidence is consistent with him accepting its validity without question, and
(b) per Rein J - there were no reasonable grounds for the respondent to believe “that there was a proper basis for the third party’s direction” - in circumstances where there is no evidence that the direction complied with cl 5.3 of the relevant facilities management contract.
The unreasonableness of the respondent’s actions in transferring the applicant is amplified by:
(a) the extensive dispute resolution procedures contained in the relevant facilities management contract (see paragraph 63(g) above) - which could have easily been invoked by the respondent when issued with the relevant direction (which I have found to have been invalidly made in accordance with the contract), and
(b) Swain’s misleading of the applicant in advising him (in the text message on 6 March 2023 and in the letter on the same date) that cl 5.3 of the relevant facilities management contract allowed Stockland to issue the relevant direction – which I have found to be incorrect advice – I should add that the relevant clause is not a difficult contractual term to understand and certainly would not require the reader to have legal or similar training.
Therefore, applying the objective test required by the authorities, I find that a “reasonable observer” would clearly consider the respondent’s actions in transferring the applicant from his work at the Mall to not be reasonable, as he had not been found to be guilty of any wrongdoing and as there was no basis for the respondent asserting that it was contractually obliged to transfer him.
I now turn to the respondent’s actions in respect of discipline when it stood down the applicant on 17 February 2023.
I again observe a lack of evidence relied upon by the respondent, especially:
(a)    no statement evidence from Homsi;
(b)    no statement evidence from Farhat;
(c)    no security camera footage film - from the cameras outside the security office;
(d)    no relevant evidence from Stockland at all - except an email which Faljoun received on 17 February 2023 (see paragraph 61 above);
(e)    no real explanatory evidence as to how Farhat’s credentials were used to alter the security camera footage on the date of the robbery – as well as no explanatory evidence of the mechanics by which security camera footage could be altered, and
(f)    no evidence regarding the investigation conducted by the respondent following the standing down of the applicant - described by Swain as an “exhaustive” investigation.
Without this evidence, I find that the respondent cannot prove Stockland’s actions to be reasonable in advising the respondent to stand down the applicant on 17 February 2023. The only evidence that I have before me to support Stockland’s decision in this regard comes from discussions (especially with Farhat) referred to in Faljoun’s statement evidence, as well as the email referred to at paragraph 109(d) above (which incidentally was sent by Gazi Yalcinkaya, who has also not provided any statement evidence).
As far as I can understand it from Faljoun’s statement evidence, prior to the robbery occurring, Farhat says he had used his credentials to access the security camera footage in the security room. His access then remained “logged in so this would have given anyone access to the system but not his credentials”. Farhat then says that “his credentials were used to alter the CCTV recording times”. Farhat further says that he had not provided his credentials to anyone else. It seems to be that Farhat is suggesting that he forgot to log off, and as a result, someone else was able to use his logged on credentials to access the security camera system and alter CCTV recording times. This is not entirely clear however as Faljoun also seems to suggest (see paragraph 49 above) that Farhat remaining logged on gave others access to “the system but not his credentials”, suggesting that knowledge of his credentials may still have been necessary. Farhat has not however provided any statement evidence confirming or clarifying what occurred and how it might have occurred.
As previously noted, it has not been explained to me the mechanics by which security camera footage could be altered or precisely how the applicant could have altered security camera footage. It has also not been explained to me precisely when the footage was altered. The email that Faljoun received from Gazi Yalcinkaya on 17 February 2023 refers to Farhat advising him that “other changes to the CCTV” were made at 2:56pm on 9 February 2023, but without further evidence from Farhat, I do not know what these changes were or how they were made. Further, I do not attach much weight to the contents of the email in the circumstances. Its allegations have not been adopted in any formal statement and it was not even sent to Faljoun by the person making the allegations (that is, Farhat). It contains a hearsay record of Farhat’s allegations, as recorded by Gazi Yalcinkaya. The allegations in the email have also been disputed by the applicant (see paragraph 26 above), who has given evidence that he actually viewed the relevant security camera footage outside the security office to confirm the incorrect assertions in the email. I prefer the applicant’s evidence in this regard to the hearsay assertions in an unadopted email.
It should also be noted that Swain gives evidence (see paragraph 58 above) that Stockland “did not provide evidence as to the times that the cameras were changed”.
Looking at it objectively, on the unclear evidence before me as to the operation of the security cameras at the Mall, I would have thought that if there was to be an investigation into the lack of security camera footage of the robbery, the starting point of the investigation would necessarily involve a consideration as to the reliability of Farhat’s allegations and explanations (before the applicant or others were placed under suspicion). After all, it was apparently his credentials that were used to alter the security camera footage, but there does not seem to have been any enquiry into the accuracy of his explanations in this regard.

Instead, it is Farhat that directs suspicion on the applicant because he was in the security office at the time when Farhat says the security camera footage was altered. Again however, looking at it objectively, there is nothing unusual about a security guard being in a security office.
The respondent submits that (see paragraphs 69(a) and 69(c) above) there was “at least a degree of suspicion” that the applicant may have been involved in the robbery, and as a result, it was reasonable for the respondent to stand down the applicant in order to investigate that suspicion. In my opinion however (on the evidence before me), the degree of the suspicion was unidentifiable (pending a consideration as to the reliability of Farhat’s allegations and explanations) as at 17 February 2023, and certainly not sufficient to warrant a standing down of the applicant.
The allegations against the applicant are of serious misconduct and criminal behaviour. There needs to be a proper basis for them in order for Stockland to be acting reasonably in pursuing them. On the evidence (or rather lack of it) before me, I find Stockland’s actions in pursuing the allegations against the applicant to be unreasonable.
In finding this, I am well aware that Stockland is not a party to these proceedings, and may be able to produce a significant amount of supportive evidence as to the reasonableness of its conduct if required. I can only of course however make my determination on the evidence before me.
While the unreasonableness of Stockland’s actions is a consideration for me according to Basten JA in Jeffery, the authorities make it clear in my opinion that I need to follow that consideration with a consideration as to the reasonableness of the respondent’s actions when presented with Farhat’s allegations.
In my opinion, it is clear that the respondent accepted those allegations at face value. There is no consideration in the statement evidence of Faljoun or Swain as to the reliability of the allegations. There is no evidence that either of them viewed the security camera footage outside the security office. There is no evidence that either of them considered how Farhat’s credentials may have been tampered with when he did not know himself. Indeed, there is evidence from the applicant (see paragraph 28 above) that Faljoun told him on
20 February 2023 (after he had been stood down) that “Stockland had no evidence on me”. I accept that Faljoun said this. Faljoun did not deny it in his statement evidence.
The applicant also advised the respondent of issues with the security camera footage relied upon by Stockland in its allegations against him. He details these issues in his statement (see paragraph 26 above) and advises that he informed his supervisor, Homsi, about the issues. He also specifically requested that the respondent review the footage in his response to its 20 February 2023 letter (see paragraph 34(e) above).
There are discrepancies between what the applicant saw in the footage (outside the security office) and what is recorded in the email sent to Faljoun by Gazi Yalcinkaya. There is no evidence that the respondent investigated these discrepancies. Indeed, when addressing the discrepancies, Faljoun (see paragraph 55(b) above) clearly continues to rely upon Stockland’s email, which I have already determined lacks weight. I do however give weight to the applicant’s evidence in this regard as he is the only individual who saw the relevant footage and has given statement evidence.
The discrepancies identified by the applicant in this regard are significant. Stockland’s email refers to him being alone in the security office between 2:56pm and 3:38pm on
9 February 2023, whereas the applicant’s viewing of the relevant footage includes:
(a)    that he entered and re-entered the office a few times during that period;
(b)    that he was never alone in the office, and
(c)    that during the period, “Fits” was in the office alone.
In circumstances where Faljoun was able to earlier on 17 February 2023 (see paragraph 48 above) review security camera footage of the scene of the robbery, it is unclear why he did not review security camera footage from outside the security office being relied upon in Stockland’s allegations, especially after discrepancies with Stockland’s recording of that footage in its email to Faljoun were raised by the applicant.
In accordance with Heggie, the reasonableness of the respondent’s actions is to be assessed according to what was known by it or what could have been ascertained by it through reasonably diligent inquiries or the exercise of reasonable care.
The overwhelming inference from the statement evidence of Faljoun and Swain is that neither of them properly considered Stockland’s allegations (through Farhat) against the applicant. They simply followed direction from Stockland without question.
Indeed, after Faljoun had been initially appraised of Stockland’s allegations on
17 February 2023, the inference is that he then did not consider any action, other than an investigation, would be necessary. He says (see paragraph 50 above) that he assured his team that he would support them and that all that had occurred so far was that “purely allegations” had been made. The inference is that he did not consider that the allegations were cause for the applicant to be stood down from his employment. However, his position changed when he later received a telephone call from Farhat requiring the applicant to be stood down.
According to Hodgson JA in Jeffery, an employer’s conduct can be reasonable even if a third party has not acted reasonably, provided the employer has itself reasonably seen a direction from a third party to be based on reasonable concerns. However, in relation to the respondent, I find (on the evidence before me) not only that it did not act reasonably in assessing the reasonableness of Stockland’s direction, but in fact, that it did not assess the reasonableness of the direction at all. It simply followed the direction without question.
Or to use Rein J’s reasoning in Jeffery, I find (on the evidence before me) that there were no reasonable grounds for the respondent to believe that there was a proper basis for Stockland’s direction. Again, the respondent in my opinion did not assess the basis for the direction at all. Indeed, its initial assessment as to the respondent’s allegations did not involve a standing down of the applicant. It then later accepted the standing down direction from Stockland without question.
By reference to the nine matters referred to by Rein J in Jeffery (see paragraph 97 above):
(a)    in my opinion, Stockland did not produce sufficient evidence to the respondent to support the serious allegations that were being made against the applicant;
(b)    again, there is no evidence that Stockland validly invoked cl 3.5 of the facilities management contract when it instructed the respondent to stand down the applicant - specifically, there is no evidence of any notice in writing in this regard, and there is no evidence as to the opinion of the project manager as to the applicant’s alleged misconduct;
(c)    I have found that there was no proper basis for Stockland’s direction;
(d)    I have found that both Faljoun and Swain failed to consider whether there were reasonable grounds for Stockland’s direction;
(e)    in my opinion, there were steps available to the respondent under cl 16 of the facilities management contract to resolve any disputes between Stockland and it - while invoking those steps may have proved to be commercially dangerous for the respondent, there was nothing to prevent it from questioning Stockland’s direction and the evidence in support of it;
(f)    the standing down of the applicant was a serious action – and in my opinion, an action not initially contemplated by the respondent until it was directed to do so by Stockland;
(g)    I do not have any evidence as to the form of the investigation subsequently undertaken by the respondent or Stockland;
(h)    there is no evidence as to any extraneous factors (other than Stockland’s direction) that led to the standing down of the applicant, and
(i)    there were no submissions made as to any relevance of the contract of employment between the applicant and the respondent regarding the standing down of the applicant.
The respondent submits (see paragraph 69(e) above) that it supported the applicant during the investigation process into his alleged role in the robbery. I reject this submission. In my opinion, the evidence is clear that the respondent put its commercial relationship with Stockland ahead of any support that it provided to the applicant. For it to have provided any meaningful support to the applicant, it would have needed to question Stockland’s standing down direction and it would have needed to advise Stockland that it had not complied with cl 3.5 of the facilities management contract in relation to that direction. In this regard, I also reject the respondent’s submission at paragraph 69(g) above that there was nothing that it could have done to review Stockland’s direction.
There are other aspects of the respondent’s action in standing down the applicant that I find to be unreasonable:
(a)    the meetings between the applicant and Faljoun on 17 September 2023 were held without notice to the applicant and without the applicant being given a chance to be provided with a support person - in my opinion, this is reasonable considering the serious nature of the allegations being made against him – I accept the applicant’s submission at paragraph 75(1)(b) above;
(b)    the allegations against the applicant were discussed by Faljoun in front of others – the applicant refers to Homsi being present (see paragraph 24 above) and Faljoun refers to discussing the allegations with “his team” (see paragraph 50 above);
(c)    the applicant (see paragraph 25 above) says that Swain initially told him on
17 February 2023 that there would be an investigation into the allegations made against him, and that any suspension would be dependent upon the result of that investigation – however, despite this assurance, the applicant was then stood down from his employment later on the same day before the investigation had commenced – Swain in his statement does not deny the applicant’s recollection in this regard, and I therefore accept that recollection to be accurate – I accept the applicant’s submission at paragraph 75(1)(c) above, and
(d)    the applicant’s standing down was communicated to him by text message (initially by Homsi on 17 February 2023 and then by Faljoun on
18 February 2023) – an inappropriate means of communication in my opinion.
As was pointed out in Sinclair and Heggie, these individual “blemishes” in the disciplinary process do not necessarily deprive the whole process of reasonableness. A broad approach is to be taken to determine whether the entirety of the disciplinary process involved reasonable action on behalf of the respondent. However, combining the “blemishes” with the respondent’s lack of enquiry or assessment into what I have found to be an unreasonable direction from Stockland, I find that the respondent’s action in standing down the applicant on 17 February 2023 was not reasonable in all the circumstances.
In weighing up the consequences of the respondent’s conduct against the reasons given for it (as Armitage CCJ did in Ritchie), I accept the consequences as significant and the reasons as inadequate. The applicant was given mixed messages regarding the allegations against him by Swain (in advising him that he would only be suspended following an investigation) and by Faljoun (in advising him on 20 February 2023 that Stockland had no evidence against him). Further, the specific reasons for the standing down given by Faljoun (see paragraph 52 above) related to a contractual obligation for the respondent to comply with Stockland’s standing down direction, which was an incorrect assertion having regard to cl 3.5 of the facilities management contract.
The test of reasonableness is objective, and my view is, when I ask the question posed by Walker CCJ in Buxton – “what would a reasonable observer think about all this?”; the tautological answer is that a reasonable observer would not find the respondent’s action in standing down the applicant on 17 February 2023 to be reasonable. I so find.
In relation to the respondent’s submission that as a matter of comity, I should follow Makdessi, I accept the applicant’s submission at paragraph 77 above. Having considered the decision in Makdessi, it is clear to me that Member McDonald dealt with significantly different factual and documentary evidence in that decision. She did not have access to the facilities management contract between the respondent and Stockland. I cannot “follow” a decision where the different facts and evidence do not allow it to be followed.

SUMMARY

In summary, having found that both the respondent’s actions in standing down the applicant on 17 February 2023 and then transferring him from his work at the Mall on 6 March 2023 were not objectively reasonable, the respondent’s defence to the applicant’s compensation claim pursuant to s 11A of the 1987 Act fails.
I therefore find that as a result of the respondent’s processes and actions from
17 February 2023 with regard to its investigation into the applicant’s alleged role in a robbery at the Mall (involving its standing down of the applicant on 17 February 2023 and its transferring the applicant from his work at the Mall on 6 March 2023), the applicant has sustained an injury pursuant to s 4 of the 1987 Act, being a psychological injury.
I find that the respondent has failed to establish that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer or discipline.
Having regard to the agreement of the parties (see paragraph 15 above), there will be:
(a) awards in favour of the applicant from 18 February 2023, pursuant to ss 36 and 37 of the 1987 Act - calculated having regard to the agreed PIAWE of $1,746.18 (as adjusted if necessary to apply relevant indexing) and to the agreed lack of current work capacity of the applicant, and
(b) a ‘general’ order in favour of the applicant pursuant to s 60 of the 1987 Act.
The awards are calculated in the Certificate of Determination.

[2024] NSWPIC 360

5 July 2024