Dimian v Millennium Security Specialist Services Pty Ltd - [2024] NSWPIC 360

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 360
Decision Date: 5 July 2024

CaseChat Overview and Summary

In the matter of Dimian v Millennium Security Specialist Services Pty Ltd, the primary dispute involved a claim for workers' compensation related to a psychological injury. The applicant, Dimian, sought weekly benefits compensation and medical or related treatment expenses under the Workers Compensation Act 1987. The case was heard by the Industrial Relations Commission of New South Wales.

The key legal issue before the court was whether the employer, Millennium Security Specialist Services Pty Ltd, could rely on section 11A(1) of the Act as a defence to the claim. This section permits a rejection of liability if the psychological injury was caused by reasonable actions taken with respect to discipline or transfer. The court had to determine whether the employer had demonstrated that the actions taken were reasonable, which would negate the applicant's entitlement to compensation. The court considered the applicant's and witnesses' statements, medical reports, other treatment records, claim correspondence, and relevant factual and contractual material to make this determination.

The court found that the employer had not successfully demonstrated that the actions taken with respect to discipline or transfer were reasonable. The employer had accepted that the applicant sustained a psychological injury and had no current work capacity as a result, but could not show that these actions were reasonable. The court referred to several precedents, including Department of Education and Training v Sinclair, Makdessi v Millennium Security Specialist Services Pty Ltd, and others, to support its reasoning. Consequently, the court held that the employer had failed to establish the necessary defence under section 11A(1) of the Act. The court awarded the applicant weekly benefits compensation and medical or related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.

Orders