Dimian v Millennium Security Specialist Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dimian v Millennium Security Specialist Services Pty Ltd [2023] NSWPIC 561
APPLICANT:	Nabil Dimian
RESPONDENT:	Millennium Security Specialist Services Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	24 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses; applicant employed as a security guard; applicant suspended with pay after issue with CCTV recording; no wrongdoing by applicant established, but respondent’s client directed that he be removed from the site; accepted psychological injury; respondent relied on a defence to the claim pursuant to section 11A, relying on its action with respect to discipline; respondent sought leave to rely on its action with respect to transfer; applicant opposed leave being granted; respondent maintained that applicant had work capacity; consideration of Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, Irwin v Director-General of Education, Department of Education and Training v Sinclair, Northern NSW Local Health Network v Heggie, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Smith v Roads and Traffic Authority of NSW, Ivanisevic v Laudet Pty Ltd, Commissioner of Police v Minahan, Jeffery v Lintipal Pty Ltd, Viney v Burwood Council, and Kirkbride v State of New South Wales (Ambulance Service); Held – the respondent is refused leave to rely on its action with respect to transfer; the applicant’s injury was wholly caused by respondent’s action with respect to discipline, in suspending the applicant with pay; the respondent’s action with respect to discipline was not reasonable; the respondent does not have a defence to the claim pursuant to section 11A; the applicant has no work capacity; award for applicant of weekly benefits pursuant to sections 36 and 37; award for applicant of medical expenses pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant for weekly benefits as follows: (a) from 18 February 2023 to 20 May 2023, pursuant to s 36 of the Workers Compensation Act 1987, at the rate of $902.50 per week, and (b) from 21 May 2023 to date and continuing, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $760 per week. 2. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Nabil Dimian (Mr Dimian) is employed by the respondent, Millennium Security Specialist Services Pty Ltd (Millennium) as a security guard.
Mr Dimian has sustained an accepted psychological injury, claimed to have occurred on
18 February 2023.
The applicant completed a Worker’s Injury Claim Form (the claim form) on 7 March 2023. The date of the injury was stated to be 18 February 2023.
The applicant stated that on 18 February 2023, he was suspended with pay due to alleged misconduct for CCTV tampering. “Ever since” that happened, he had been depressed, stressed, and had anxiety, as he had never been accused of anything like that before.
On 3 March 2023, he received a call that Stockland Risk Committee had deemed him a risk and he was no longer to work at Stockland Mall (Stockland) in Merrylands. This caused him to break down and “go into depression even more as I gave my all to my job and was never guilty of misconduct”.
His company did not fire him, as there was no evidence, but he was deemed a risk to Stockland with no explanation. He was in debt to his family and partner, and “everything is falling apart in my life”. He had stopped work on 6 March 2023.
The applicant stated that an issue that would delay or prevent him returning to work was that he was “anxious that I will now always or could be accused of misconduct and it worries me and I’m scared”.
On 28 March 2023, the respondent’s insurer, QBE, issued Mr Dimian with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
QBE disputed liability for the applicant’s injury. It maintained that the injury was wholly or predominantly caused by the respondent’s reasonable action taken or proposed to be taken with respect to discipline, pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). It therefore disputed liability for payment of weekly benefits or medical or related treatment.
By letter dated 5 May 2023, the applicant’s solicitors requested on his behalf a review of QBE’s decision to dispute liability.
QBE issued the applicant with a further notice pursuant to s 78 of the 1998 Act on
11 May 2023.
In this notice, QBE again advised the applicant that it disputed liability for his claim because his psychological injury was wholly or predominantly caused by action taken or proposed to be taken by the respondent with respect to discipline. It therefore disputed that he was entitled to payment of weekly benefits or medical expenses.
On 23 May 2023, iCare issued the applicant with a notice, having reviewed QBE’s decision. ICare advised Mr Dimian that the decision was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 29 June 2023.
The applicant claimed to have sustained a psychological injury on 18 February 2023. He was based at Stockland and was accused of being complicit in a robbery at Stockland.
The applicant claimed that he was suspended with pay while an investigation was conducted. While he had been exonerated “without formal apology of [sic: or] acknowledgement of harm”, he “continued to be demonised”, being deemed “a risk”.
The applicant claimed weekly benefits compensation from 18 February 2023 to date and continuing.
The respondent lodged its Reply on 13 July 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the respondent has established a defence to the claim pursuant to s 11A of the 1987 Act, because the applicant’s psychological injury was wholly or predominantly caused by its reasonable action with respect to discipline, and
(b) the extent of the applicant’s incapacity for work.

Matters previously notified as disputed

The matters previously notified were those referred to in the dispute and review notices.

Matters not previously notified

At the conciliation/arbitration hearing, the respondent sought to rely on its action with respect to “transfer”, pursuant to s 11A of the 1987 Act. This was opposed by the applicant.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed for preliminary conference on 31 July 2023. Mr Edwards-Joy appeared for the applicant, who was present. Ms Tancred appeared for the respondent, with
Ms Gabriel as observer. Mr Padas of QBE also attended.
The applicant confirmed that he relied on the date of injury of 18 February 2023.
The respondent confirmed that it did not dispute that the applicant had sustained injury. It maintained that it had a defence to the claim, pursuant to s 11A(1) of the 1987 Act, and specifically its action with respect to discipline.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $950 per week.
The above matters were reflected in the Direction issued on 31 July 2023.
The matter was listed for conciliation/arbitration hearing on 19 September 2023. Mr Malouf of counsel, instructed by Mr Malai and Mr Naddaf, appeared for the applicant, who was present with his partner. Mr Doak of counsel, instructed by Ms Tancred, appeared for the respondent. Mr Kumar of QBE also attended.
The Application was amended without objection to claim a general order for s 60 expenses.
As I have noted, the respondent sought to rely on its action with respect to “transfer”, in support of its defence pursuant to s 11A of the 1987 Act. The applicant opposed its application, maintaining that he would be prejudiced should the respondent be granted leave to raise this previously unnotified issue.
For reasons that were provided at the hearing, and which were recorded, the respondent’s application to rely on “transfer” was refused.
In refusing the respondent’s application, I was guided by the decision of Deputy President Roche in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services,[1] and the principles enunciated in that matter.
[1] [2007] NSWWCCPD 227.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission: and considered in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Nabil Dimian

Mr Dimian’s statement is dated 21 March 2023.
He first saw his general practitioner (GP), Dr Ashraf Aboud, about this incident in late February 2023.
He commenced work for the respondent in July 2021. He was a security rover and sometimes supervisor, based at Stockland. He reported to his supervisor, Majed Homsi, or the account manager, Mikhail Fajloun.
The procedure to report a grievance was to report it to Mikhail. He would generally say “If you don’t like it we will move you to another site.”
On 17 February 2023, he was at work when Mikhail came in and started “blasting” him and Majed about the CCTV cameras not recording during a specific period of time.
A robbery had occurred, which was a break and enter. When the police contacted security, they realised that the cameras had not been recording between 10pm and 3am.
He was unaware that anything had happened at this stage. From what he recalled, after he spoke to them, Mikhail had a meeting with the operations manager, Walid Farhat.
Following the meeting Mikhail came into the office and told them someone had used Walid’s log in credentials multiple times and changed the recording times on the CCTV.
The security camera in the office was not working so they could not check to see who had changed it. Mikhail said the cameras had been changed on certain dates because they could see when the credentials had been used. Walid had told Mikhail he had not done it. Mikhail asked him if anyone else had his log in details, and he said no.
He was called into a meeting the same day, with Majed and Mikhail. Mikhail told him the Stockland manager had checked the footage and the time the credentials were being used, which was 8 and 9 February. A security camera placed outside the door to the office recorded him and George Makdessi entering the office in the time frame that the credentials were used.
Mikhail asked what he had been doing in the office and he said he may have gone into the office but did not use any credentials. They often went into the office for different things but did not go near the cameras unless they had footage to look at.
Mikhail asked if he was sure, and he said he was “100% sure”. Mikhail said OK. He then asked Majed to leave, and called Joshua Swain, Millennium’s national security manager. The phone was on speaker.
Joshua explained that he was seen walking into the office and was “apparently” there for 40 minutes or so. He denied everything again. Joshua told him they may look at suspension, depending on the outcome of an internal investigation.
He still did not think he was in any trouble, because he had not done anything. At the time, he had not been able to check the footage of him entering the office. He started to feel like “they” thought he had done it. He knew he had not, so knew they had to have footage of someone else going into the office.
He finished the phone call and then completed a patrol. He received a message at 7.09pm from Majed advising that he and George would be stood down with pay for a week. He asked why. He said it was because he and George had been in the office the longest. Mikhail (he may have meant Majed, but it is not clear) still did not tell him that anyone else had been seen entering the office. He made them believe that it had only been the two of them.
He did not understand, because someone else had to have done it. He asked Majed if he would receive his full pay plus overtime. He said he would get full pay with overtime and weekend rates. This was “a lie” because he received the bare minimum.
He then asked Majed if this was true, and he said Mikhail had just told him that so he would stop asking. Majed then told him he would receive the bare minimum.
After Mikhail left, he checked the footage and saw that he walked in and out a few times on
8 and 9 February. He was in the office during some of the times when they said the cameras were changed, but he was always accompanied by either George or “Fits” (Fitiafiafi Tuliloa), who is also a security guard.
“They” claimed he was in the office for 40 minutes, saying he entered at 14:51 and left at 15:38. These timeframes were when the cameras had been changed. He was in the office during some of these times but always accompanied by either George or Fits.
He entered the office at 14:51 but the camera recorded him leaving and re-entering the office a few times. The last time he left was at 15:38 but he was not in there for the whole time. He saw the footage himself. Fits was the only person that was in the office alone for almost an hour. He did not understand why he was accused.
He saved the footage to the work computer but could not access it now. He told Majed he had watched it and the timeframes he was accused of being in the office were incorrect. Majed said he would let Mikhail know.
Nothing changed after that, and he was still on suspension. He received a call from Mikhail on 20 February to ask him how he was going. He told him he had seen the footage and the accusations were incorrect. Mikhail told him Stockland had no evidence on him.
Mikhail then told him they could train him at a different site in a control room which was all camera work. He thought it was odd that he was offering to put him at a different site temporarily. He told Mikhail he would wait until after the internal investigation as he knew he had not done what they were accusing him of.
He then received the allegation letter. He responded via letter. He called Mikhail and asked if he had received it. He said he had, and it had been forwarded to Stockland. He denied all allegations and requested they look into the matter further.
He was suspended on 17 February and on “Wednesday the 1^st” (1 March), he called Joshua Swain to ask why he was still suspended. He was already very stressed because of the allegations, and suffering financially.
Joshua told him they were still investigating, and had found no evidence he had done anything at that stage. He said he was still employed by Millennium, and they were not going to take any disciplinary action.
He asked Joshua “what if Stockland say that they don’t want us anymore?” He said they would be silly to do that because they could not prove any wrongdoing. George was present during the call, and he had it on speaker.
Joshua told them they should have an answer by Friday, and if he needed to speak to anyone they could call him at any time. When he had not heard anything, he called Joshua on Friday afternoon. He did not respond or call back.
On 4 March, Joshua called him and asked how he was. He said the Stockland Risk Committee had deemed him a risk to work on the property. He was “gobsmacked” and asked how he was a risk.
Joshua told him there was no disciplinary action or misconduct found and they had no evidence. He then asked him why he was being removed. Joshua told him they had asked Stockland but had not received a response and as per the contract they could request whoever they wanted on site.
He got off the phone and just broke down. He did not know what to do. He felt very unsupported. They told him there was no evidence against him, yet he was being punished. George was also removed from the site. He wanted to know why there were other security guards in the office at the time the cameras were changed, one of whom was alone, who was still working at Stockland and had not been suspended or even questioned, as far as he knew.
Majed was also in the office with him at the time the credentials were used but he did not believe he was questioned. He felt they had discriminated against them because of their faith. He was frightened to go back to work because “what if something like this happens again?” They had not given him the answers to the questions he asked to try and clarify why he was in this situation.
He was communicating with some of the security team on the phone, as they are friends. He was told there were technicians hired to look at the cameras, the report sent to Stockland was a system error, and it was not anyone using the credentials. He was told the technicians repaired the cameras and they glitched again with the same time frame not long after, and then it happened a third time. This is how they established it was a system error. If that was the case, “why have I not been reinstated or at least received an apology?”
He then received a letter stating he would be moved to another site. After he had calmed down, he called Josh back on the Saturday afternoon and asked that everything that was said in the previous phone call be put in writing.
Joshua said he would have to get HR (human resources) to draft the letter to word it correctly. He asked if he was being used as a scapegoat. He hesitated then said something like, “yeah if you want to put it like that.” He asked Joshua again to put it in writing. He then received an email from Josh on the Monday. He responded by asking him why, if they were deemed a risk, was it not put in the letter?
Josh then denied telling him he had ever said anything like that. He had him on speaker and his family heard him say it. He then received another email stating what he had said. He had not had any contact with him since then.
He had not received an apology. He had just been told he was being re-located. He felt stressed that he could be accused of something in the future, even if he had not done anything. This had made him feel very worthless, like he had been used as a scapegoat so Millennium could save the contract. He believed this was very unfair. He was obviously not valued, which was very distressing.
He went to his doctor as he was feeling very distressed and told him he was too scared to return to work. He then lodged his claim.
He had never been investigated for work related misconduct before or put himself in a position to be questioned. His life was completely affected ever since this investigation started and it got worse when he was deemed a risk. He was deemed a risk with no evidence, by a company like Stockland, and Millennium did nothing besides try to instantly stop his pay and move him to a different site like he was a worthless nobody.

Notice of stand down

On 18 February 2023, Mr Fajloun sent the applicant an email advising that, as of that date, he had been stood down with pay from Stockland, pending an investigation relating to a CCTV matter.
Mr Fajloun advised that the applicant would receive the allegations notice via email and be provided with a reasonable period to formally respond. He attached Millennium’s EAP (employee assistance program).

Formal Allegations Notice

On 20 February 2023, the respondent advised the applicant by letter (emailed to him) of a misconduct management process (MMP).

The letter was to facilitate Millennium formally raising allegations of the applicant’s “recent unacceptable performance and behaviour”.
The allegations included that on 8 February 2023, Walid Farhat’s credentials were accessed without authorisation on the CCTV system in the Stockland security office, between 17:37 and 17:53 hours. This allegation was supported by camera footage in the corridor depicting the applicant entering the office at the timeframe.
On 9 February 2023, Walid Farhat’s credentials were again accessed without authorisation, on the CCTV system at 14:56 hours. This allegation was supported by camera footage in the corridor, depicting the applicant entering the office at 14:51 hours and vacating it at 15:38 hours.
On both occasions, changes were made to CCTV recordings via username and password access owned, but not authorised by, Walid Farhat.
The applicant was required to respond in writing to the allegation by 5pm on
22 February 2023. He was advised that failure to respond, or not [sic] provide all information he sought to be considered, without reasonable cause, may be considered a breach of a lawful direction and may result in the outcome being determined based on the information currently available. In the absence of reasonable cause for [providing] no response, no further opportunity to respond would be provided.
The applicant was advised that if the allegations were substantiated, his behaviour would constitute serious misconduct, significantly breaching multiple Millennium policies. These included clause 8.1 of the Code of Conduct (the company’s expectations of all employees); and clause 16 of the Code of Conduct (fair, reasonable and honest).
The applicant’s suspension from duties on full pay, implemented on 18 February 2023, would continue until a final decision had been made.
The applicant was advised that the outcome could result in disciplinary action, up to and including the termination of his employment; the allegations and investigation must remain confidential; he must not interfere with the investigation; he must respond honestly; and failure to adhere to lawful and reasonable directions as part of the investigation may result in further disciplinary action.
The applicant was reminded of his entitlement to EAP, and its details. Any questions he had were to be directed to Mikhail Fajloun.

Applicant’s response

The applicant responded on 20 February 2023.
He recalled walking into the office with Fitiafiafi Tuliloa as he had bought a snack and they were having a Code 20. George Makdessi was already in the office.
He had a good memory of the afternoon of 8 February 2023, as there were yellow security vests hanging in the office. They put them on and took a picture to share with the security group chat. This was shared with the group at 5:50pm.
Shortly after this, the three of them left the office together. Therefore, the accusation was incorrect. He wished the camera footage in the corridor to be closely reviewed and his colleagues questioned, to confirm his actions within the time period were accurately recounted, and it could not have been him who accessed Walid Farhat’s credentials.
On 9 February 2023, he was with Majed Homsi when entering the office, and several security officers entered and vacated the office within the time period. He was never on the PC (personal computer) within this period and could be seen by several colleagues, therefore confirming that the allegation was false and incorrect.
The applicant hoped the camera footage in the corridor and the officers who were in the office could support and validate this.
The accusations against the applicant were incorrect, and he hoped this was investigated efficiently. This was the first time in 10 years in the security industry he had been accused of misconduct, and his mental health was suffering.

Notice Outcome Letter

On 6 March 2023, Mr Swain sent the applicant an email and attached letter.
The applicant was advised that none of the allegations was reasonably substantiated by Millennium. (Emphasis in original). As a result of its findings, no formal disciplinary action would be pursued.
On 3 March 2023, Millennium’s client, Stockland, had provided written notice, in accordance with s 3.5 of the Facilities Management Contract between it and Millennium, of its clear instructions to remove the applicant, with immediate effect, from performing security service activities at Stockland.
Millennium was obligated under the contract to comply with the principal’s request.
Now that a final decision had been reached, the applicant’s suspension on full pay, which was implemented on 18 February 2023, would conclude, with him returning to work on
7 March 2023.
The respondent confirmed that the applicant would be transferred to Digital Realty (Data Centre) Erskine Park, effective 7 March 2023.
The applicant was again advised of his entitlement to EAP. There was provision for him to sign the letter accepting the outcome and change to his employment.

Text messages between the applicant and Mr Swain – 6 March 2023

On 6 March 2023, the applicant sent a text message to Mr Swain.
The applicant stated that “as discussed on Saturday when you called me”, Mr Swain claimed that Stockland Risk Management deemed him and George a risk to work on their sites.
The applicant asked why this was not outlined in the formal outcome report. He had specifically contacted Mr Swain and asked that if that was said, then he would be putting it in writing.
Mr Swain responded that a clear and formal reference had been made to the contract clause of the binding service agreement, s 3.5, and it had “been applied within the letter”. (Emphasis in original).
With respect to the applicant’s comments about Stockland Risk (Committee), Mr Swain stated “let me be clear and clarify; you contacted me on Saturday afternoon proceeding [sic] our initial conversation and demanded this be put in writing.” (Emphasis in original).
The applicant’s “continued demands were met with” Mr Swain’s response that a letter would be prepared on 6 March “outlining the details of the outcome.”
Mr Swain stated that he “made not [sic: no] such verbal commitment to you in response to your three (3) demands for words to the effect ‘removed because you are a risk’ to be included in the letter.”
Mr Swain had informed the applicant that Stockland’s Risk Committee had independently reviewed the matter and its clear decision and direction was to remove him from Stockland, based on its risk assessment.
Given that it is 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”.
Mr Swain stated that Millennium was obligated to communicate with the applicant formally, “this has been done as evidenced in the letter with reference to applicable clauses”. They would “move to next steps with your relocation and return to work”.

Evidence of George Makdessi

Mr Makdessi’s statement is dated 26 May 2023.
He was employed by the respondent as a security officer and worked alongside Nabil Dimian.
He and Nabil were frequently rostered on together. From his experience, Nabil was diligent, disciplined, and friendly. He never saw him breaching his duties. He was committed to his job and passionate about work.
On or around 17 February 2023, he was working a night shift with Nabil. He saw him receive a message from Majed, their supervisor. Nabil informed him Majed had advised that he would be stood down for a week with pay. He was completely shocked and asked why.
Nabil explained they were being investigated, given a recent break-in. On the night in question, they were in the security room where camera footage had allegedly been tampered with. He appeared visibly upset.
He and Nabil “were kept in the dark for weeks” while the investigation took place. He noticed how this affected Nabil, whose mental health and condition were deteriorating. He seemed downcast and distressed at times.
On or around 1 March 2023, he was sitting in a car with Nabil when he called Joshua Swain. The phone was on speaker.
Nabil asked why they had been suspended. Joshua said the investigation was ongoing and they had not found any evidence of wrongdoing. He said they would know the results by Friday.
Nabil was very upset and anxious because of this. He maintained his innocence and felt their employer was treating them unfairly. He felt there was already an assumption that he was guilty of something bad.
On or around 4 March 2023, he received a call from Joshua, who told him he had been stood down, even though the investigation had not shown any wrongdoing.
He spoke to Nabil soon after, and he said he received the same call. Nabil told him the employer had been completely unreasonably [sic]. He told him Joshua said he was deemed a risk to work on the property. This greatly upset Nabil, who was breaking down, as he had done nothing wrong.
He found that they treated him and Nabil very unfairly. They called them “risks”, while also clearing them of disciplinary action or misconduct.
He had seen how visibly distressed and upset Nabil had become. He believed it was very unfair how the employer kept Nabil in the dark, and how unreasonably he had been treated to make him feel like he was already guilty.
“From [his] 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 during any meetings regarding these accusations.

Evidence of Joshua Swain

Mr Swain is the respondent’s head of business AU/NZ security services. His statement is dated 4 April 2023.
Stockland alleged that Nabil and another employee had tampered with the CCTV system, suggesting he had altered the operating times of the camera system. This was a serious allegation. Millennium was obligated to investigate.
They undertook and completed an exhaustive investigation, commencing on
17 February 2023. Nabil and the other employee were stood down on full pay during the investigation. This was required as per the business HR protocol.
Nabil was provided with formal notice of the allegations on the first available business day, Monday 20 February 2023. He responded to the notice.
They were unable, “for a number of reasons”, to substantiate any of Stockland’s allegations. They alleged Nabil was in or around the office at the times the cameras were changed, which could be substantiated by CCTV. It did not provide evidence as to the times the cameras were changed, or any additional evidence where the allegation, in Millennium’s view, could be satisfactorily substantiated.
Millennium stood Nabil down on full pay “more so to protect him and the integrity of the investigation”, while they carried it out.
The client took the allegations to its internal risk committee and made the decision to instruct Millennium to remove Nabil and the other employee from the site permanently.
They explained to Nabil that they could not substantiate any of the allegations and had no reason to pursue formal disciplinary action. His employment would be unaffected. However, the client had instructed his removal from the site permanently, exercising its rights under the contract of service.
He believed Nabil was “hung up on the term ‘risk’, continually implying [sic] that he was a risk and that was why he was removed. He was not deemed a risk, “nor communicated that in any way”.
Nabil was “clearly communicated in writing” [sic] that it was the Stockland Risk Committee that made the decision for his removal, following its internal review of the detail. He was concerned that he was not able to return to the site, even though there was no wrongdoing on his part.
Their clear direction to Stockland was that both employees should be returned to the site, but ultimately it was its decision, and as it was their client, they needed to honour the contract.
Nabil’s statement that he had been deemed a risk was factually incorrect. These words “in this context” were not said during the phone conversation on 4 March 2023. It was incorrect that he had said Stockland would be “silly” not to want them anymore, as it could not prove wrongdoing. It was not vernacular he commonly used in a business related or formal HR matter.
Nabil had stated Majed was in the office with him at the time the credentials were used, but he did not believe he was questioned. He felt he had been discriminated against because of his faith and was frightened to go back to work.
He was not in a position to substantiate Nabil’s comments. Each employee was treated with the highest degree of confidence, in accordance with the strict HR process. The remainder of the team was unaware that Nabil had been stood down. Faith, religion, or other external factor was not a consideration. He was unaware of Nabil’s faith. All matters of stand down are based on fact and evidence.
Nabil’s account of the phone call on Saturday afternoon was incorrect. Nabil was extremely angry and demanded continually that he write in the letter that he was deemed a risk. It was a “fabrication” that he had agreed Nabil was being used as a scapegoat.
As regards a phone conversation on 6 March 2023, when Nabil had said he was on speaker phone and his family heard him say he had said Nabil was deemed a risk, to the best of his recollection, he did not speak by phone to Nabil that day. His correspondence to Nabil comprised two emails, one in response to Nabil. He then received correspondence from a Theresa Benjamin [sic: Dimian] on behalf of Nabil and there had been no further correspondence.

Evidence of Walid Farhat

On a date that is not clear from the attachment to the report, but according to the report of Allied Universal Compliance and Investigations, which was retained by the respondent, was 23 March 2023, the investigator sent to Mr Farhat an email requesting a statement and the CCTV footage.
Mr Farhat responded that any queries should be directed to Millennium, and he was unable to participate in any investigation.

Evidence of Mikhail Fajloun

Mr Fajloun is employed by the respondent as an account manager. His statement is dated 12 April 2023.
The applicant reported directly to Majed Homsi, and he was his next in line manager.
Around 17 February 2023, he received a call from Walid Farhat, who advised there was a break and enter at a retailer the night before. The retailer requested CCTV footage from one of the guards, who was reported to have told them there was none.
The retailer complained to Stockland head office and Walid began an investigation. He discovered that the CCTV cameras were not operational at the time of the break and enter. His credentials had been used to alter the recording times, and it had not been done by him.
He escalated the matter via phone to Joshua Swain, as it was “alluded” that the security team may have been involved. He advised Josh he was heading to the site to meet the client and investigate.
On arriving on site, he had a discussion with Majed about the break and enter. Nabil was in the office at the time.
He was advised there had been a break in at EB Games while the camera was down. Prior to the break in, a man told EB Games staff that the alarm had been going off at night, affecting the cleaners, and asked if they could turn it off.
He was informed that the EB Games staff did not inform anyone at Stockland about the request to turn off the alarm. They turned it off. He reviewed the CCTV footage but was unsuccessful in locating the man. He also noticed the cameras in the security room were not operational.
He notified Joshua of his observations and preliminary understanding of the matter and spent the rest of the day investigating.
He approached the client for a meeting and was instructed to speak with Garzi Yalcinkaya, facilities manager, as Walid was not on site. Garzi called him to a meeting with him and “Angela”, the Centre manager. Walid joined on Teams.
They discussed how the cameras were altered. The client asked how Walid’s credentials had been accessed. He advised he had not given his password to anyone. He had used his password to log into the computer when the camera was down on 8 February. His access remained logged in, which would have given anyone access to the system, but not his credentials.
During the meeting, he was advised 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 that Nabil and George had been in the office when the cameras were altered, and George had at one point left Nabil in the office alone.
They asked Walid if there was anyone in the office when he used his password, and he said no. He had not provided his password to anyone. He had stored it in the notes on his phone but did not know how anyone would have gotten it from his phone.
After the meeting, he received an email from the client outlining the periods when the footage had been altered, with corresponding times when footage had shown the guards accessing the security office where the system was located.
He went back to the office and briefed his security team about the client’s allegations of them entering the office at the time Walid’s credentials were reportedly used to log into and out of the system. He assured the team that he and the company would ensure a thorough and fair investigation process into what were purely allegations by the client, and he would fully support them. They would be afforded procedural fairness and given a right of response. He assured the team he would update it at regular intervals.
In the afternoon, he received a call from Walid advising that Stockland head office had instructed that Nabil and George be stood down until the matter could be thoroughly investigated and an outcome from Stockland head office was available.
He informed Walid that he would get Joshua and Steven Pierce on the phone. They had a four-way conversation. Walid informed them the guards needed to be stood down.
After the phone call, he called Nabil and George into the office with Majed and updated them. He explained that Millennium was obliged contractually to adhere to the client’s requests, and that policy and procedures underpinned any action taken or proposed to be taken at its request.
He then advised that the client had instructed that they be stood down with full pay, pending the outcome of the investigation. He explained the next steps, including an allegation notice, as prescribed by company policy, which was simply a formality that needed to be undertaken, and was their opportunity for a right of response.
The guards confirmed their understanding of the procedures, and commented they were aware it was company policy and procedure they had to follow as part of their contract with Stockland.
On 20 February he sent the allegation notice and offered the Assure helpline for counselling or support. As the day after the incident fell on a weekend, and having regard to their welfare, the notice was sent on the next business day.
Following his email, on the same day, he followed up with a phone call to both men to check in and inform them they could call him any time if they needed to talk, and he was there to support them. He again reminded them they could call him or the helpline any time.
On 24 February, he met with both men onsite and offered to place them at another site, so they were active until the matter was resolved. They both declined. He again told them they could call him if they needed him at any time. Copies of his notes following these calls had been provided.
On 6 March 2023 he received an email from Nabil’s sister, Theresa, informing them they were not to contact him as he was distressed about the matter. They had not contacted him since then.

He responded to the applicant’s evidence.
The applicant stated that on 17 February 2023, he came in and “started blasting me and Majed about the CCTV cameras not recording during a specific period…”
Response: He commenced informal investigations on 17 February 2023. Upon arrival, he entered the office to speak with Majed to gather information. Nabil was in the office.
At this point, no guards were identified. He asked Majed about his knowledge of the incident and the client’s allegation that CCTV footage was non-operational during specific timeframes. He did not address Nabil about the cameras. He had no need to, as he was not rostered on at the time of the break and enter. He refuted that he had “blasted” Nabil or Majed. He had no reason to, given that neither was on site at the time of the break and enter.
The applicant stated that Majed sent him a message advising that he and George would be stood down with pay for a week, as they had been in the office the longest. Mikhail still did not tell him anyone else had been in the office, making them believe it had only been the two of them. He asked if he would receive his full pay plus overtime. He said he would, and “this was a lie”. Majed told him Mikhail had just told him that so he would stop asking.
Response: He asserted that he had been open and transparent in his communication with Nabil and all parties. He told Nabil he would be stood down with full pay. He asked, “does this include my overtime?” He responded that, akin to annual leave, an entitlement of 76 hours applied. He reiterated this in a conversation onsite on 24 February. An offer of an alternate worksite, which would have afforded overtime opportunities, was offered, but declined.
The applicant said while he was in the office during some of the times the camera was changed, he was always accompanied by George or Fits. Fits was the only person who was in the office alone for almost an hour, so he did not understand why he was accused.
Response: Stockland had provided a record of timeframes when Nabil was observed to have been in the office when footage had reportedly been altered. “In line with policy”, a notice of allegation was put to Nabil, and the opportunity to respond was available.
The applicant stated that Majed was in the office when the credentials were used, but he did not believe he was questioned. He felt he had been discriminated against, and not given answers to questions.
Response: For confidentiality reasons, he was not able to comment on matters relating to other employees. He confirmed that the letter of allegation set out the details of the allegations put to Nabil. At his sister’s request, they had refrained from contacting him. Faith had never been a factor in this or any other matter. Millennium is an inclusive employer that encourages diversity.
The applicant stated that he was told there was a system error, and it was not anyone using the credentials. In that case, why had he not been reinstated or at least received an apology?
Response: He was informed Stockland engaged technicians. He had no knowledge of any identified system errors and was not privy to the outcome of its investigation into the matter, if it had in fact concluded. Nabil remained an employee. His employment had never been terminated.
The applicant stated he had not received an apology. He had just been told he was being relocated. He felt stressed that he could be accused in the future, worthless, and that he had been used as a scapegoat so Millennium could save the contract. He was obviously not valued, which was very distressing.
Response: Millennium undertook due diligence in managing allegations against staff. The MMP afforded right of response to allegations relating to their conduct.
As communicated on 24 February, Millennium offered duties at an alternate site during the investigation. Following receipt of communication from Nabil’s sister, no further communication had been initiated with him.

Medical evidence

Quality Medical Practice

The clinical records commence on 2 March 2023.
Dr Ashraf Aboud recorded that the applicant was suspended with pay and there were allegations that he was responsible for a CCTV fault that turned out to be technical. He had had anxiety and insomnia since that happened and felt victimised. The incident happened on 17 February 2023. He was offered counselling.
On 6 March 2023, Dr Aboud recorded that the applicant was feeling down. He had insomnia and anxiety. He was suspended for no reason and taken off to work somewhere else.
The applicant had low mood. Concentration was a problem. There was loss of appetite and lack of interest. He was not suicidal and “self-blame”. The need for antidepressant and counselling was discussed.
On 13 March 2023, Dr Aboud recorded “anxiety”. The applicant was warned about “benzos” addiction. He was to follow up in two weeks with counselling for coping mechanisms.
On 29 March 2023, Dr Aboud recorded that the applicant was “not happy with the insurance telling him they are still investigating his case and gave him a negative outcome.” He was more depressed and insomniac.
There was a further consultation on 6 April 2023, but the records do not state the reason.
Dr Aboud has consistently certified the applicant with no capacity for work since
6 March 2023. He has recorded the date of injury as 18 February 2023. The last WorkCover certificate of capacity (COC) in evidence certified Mr Dimian with no capacity to 9 July 2023.

Mr Mustafa Alameddine – psychologist

Mr Alameddine reported on 14 April 2023.
The applicant had been referred by Dr Aboud on 6 March 2023, having presented with symptoms of anxiety and depression in the context of work-related stress regarding an allegation by his employer. He had last worked on 18 February 2023.
Mr Alameddine recorded that the applicant presented with depressed mood; anxiety; irritability; agitation; feeling helpless and hopeless; lacking motivation; anhedonia; passive thoughts of suicide; persistent worrying thoughts; social withdrawal and isolation; sleep difficulty; and poor appetite.
The applicant provided a history that on 18 February 2023, his employer unfairly suspended him following allegations that an administrator’s credentials were accessed without authorisation on 8 and 9 February 2023. During that time, the applicant and others had accessed the security room. The employer claimed that on both days, changes were made to the CCTV recordings.
The applicant denied the allegations and believed he was wrongfully targeted as others were in the security office when he was there, and they, apart from him and one colleague, were not stood down.
Mr Alameddine recorded the events of 6 March 2023. The applicant said that despite his employer not being able to reasonably substantiate the allegations, he was unfairly removed from his current role and offered a different one at another location.
Since being stood down, the applicant had experienced the symptoms noted above. He had recurring negative thoughts about his employment circumstances and a dismal and pessimistic outlook about his life prospects.
The applicant said everything felt like an “effort”. He felt anxious leaving home and spent most of his time alone in his bedroom. He had been socially withdrawn. He was smoking shisha more than usual. He had disturbed sleep and poor appetite.
The applicant had financial stress and his intention to become engaged had been “put on hold”. He had had to borrow money from his family, causing him to feel further stressed and hopeless. He felt irritable and agitated, causing conflict with his mother and partner. His partner had questioned their future together, making him feel further helpless.
Mr Alameddine recorded that there was no evidence to suggest the applicant had a pre-existing psychological history prior to the work-related injury.
Mr Alameddine diagnosed adjustment disorder with mixed anxiety and depressed mood, in the context of work-related stress. There was a direct relationship between Mr Dimian’s condition and work-related stress.
The applicant was receiving Cognitive Behavioural Therapy (CBT), and Mr Alameddine recommended that it continue. Trauma-informed therapy may also need to be considered to address work associated traumatic experiences. It was advisable that the applicant be referred to a psychiatrist.
Mr Alameddine opined that the applicant was unfit to return to work. When he was deemed fit, he would need to consider graded return to work, based on addressing his work-related psychological issues.
The applicant’s prognosis was poor, as he continued to suffer significant anxiety and depressive symptoms. Any improvements were likely to be gradual in the context of ongoing psychological intervention.

Dr Peter Young – psychiatrist

Dr Young was qualified by the respondent and reported on 1 May 2023.
Dr Young recorded a history that the applicant had enjoyed working at Stockland since July 2021. He related well to his co-workers and had no previous difficulties, including any related to performance or discipline.
The applicant reported that his current condition arose from an incident on 8 February 2023, when there had been a robbery at Stockland. He and another worker were singled out for investigation due to their appearance on CCTV footage as having accessed the security control room. He was subsequently alleged to have accessed another staff member’s details and been responsible for a gap in the recording.
Mr Dimian was distressed by these allegations and felt they were handled insensitively by his manager. He was also distressed as he was reassured he would be paid his normal wages while suspended, but he was paid less, due to the absence of overtime, which resulted in difficulty meeting financial commitments. He felt his manager lied to him.
In early March 2023, the applicant was informed that the allegations had not been substantiated but was also informed the Stockland Risk Committee did not want him continuing to work at the site. He felt indignant. He had been treated “unfairly”, which left him feeling devalued as an employee. He rejected the offer of redeployment because he felt it was unfair and he was being sent there to be “set up” for further complaints.
The applicant said he had remained distressed regarding perceived unfair treatment. He was preoccupied with intrusive ruminative thoughts of the incident, and as a result had difficulty relaxing or sleeping. His mood was low, and he was easily distressed and tearful. He was becoming increasingly withdrawn, and irritable towards his mother.
Mr Dimian had initially had eight sessions with a psychologist approved. He found them helpful, but approval was withdrawn after three to four sessions. He remained distressed by perceived ill treatment by his employer, stating “They don’t care. They treated me like a dog. I’m not some dog.”
The applicant did not wish to return to work with the respondent, as a result of continuing mistrust and offence. He could not consider mediation or reconciliation due to the degree of offence he felt. He was due compensation from his perceived ill treatment and did not deserve punishment.
The applicant was under considerable financial stress as he had exhausted his leave and was on Centrelink benefits.
Dr Young recorded no past history of psychiatric disorders or other psychological symptoms. There was no relevant family history.
Dr Young opined that the applicant met the diagnostic criteria for adjustment disorder. If not for the incident at work, he would not have developed these symptoms. He would benefit from further CBT-based treatment, to improve his adjustment and achieve a return to work. He was likely to require 6 to 10 further sessions.
The applicant’s prognosis was generally good. However, he was focused on retribution and legal actions, which were likely to impede, rather than assist, his recovery. He would benefit from a graded return to his pre-injury role as soon as possible.
Dr Young opined that the applicant could resume suitable duties with reduced hours within the next two to four weeks, with upgrade towards pre-injury duties on a second weekly basis thereafter. He would be able to return to his pre-injury duties at a new worksite but was unwilling to do so because of his grievance with his employer.
The main barriers regarding pre-injury capacity were the applicant dealing with his feelings of indignation and anger towards his employer.
Dr Young opined that the whole or predominate [sic] cause of the applicant’s condition related to actions by the respondent that fell under s 11A of the 1987 Act.

Associate Professor Michael Robertson

A/Prof Robertson was qualified by the applicant and reported on 2 May 2023.
A/Prof Robertson recorded no significant forensic history and no previous psychiatric history. There was also no significant family history.
A/Prof Robertson recorded a consistent history of events leading up to the injury. Stockland had investigated and alleged the cameras had been tampered with by a Millennium employee. The respondent conducted its own investigation, identifying a technical issue. However, the applicant and a co-worker had been accused by “JS” (Mr Swain) of tampering with the camera and being in some way complicit with the robbery. The police did not investigate further.
The applicant felt demonised by Stockland management and Mr Swain, whom he felt targeted him and “treated him like shit”. The respondent had withdrawn the allegations against him, but Stockland’s Risk Management Team deemed him (but not his co-worker) an ongoing risk and refused him performing duties at Stockland. He had been offered duties in another workplace with the respondent.
In the applicant’s view, he experienced a considerable psychological affront, as well as reputational damage. He ceased duties amid acute psychological distress at the time he was deemed a “risk at Stockland”.
A/Prof Robertson recorded symptoms of insomnia and unrefreshing sleep and multiple anxiety symptoms. The applicant was at times labile and irritable, and “often picks fights with family”. He reported being stressed, easily overwhelmed, and suffered limited symptom panic attacks. He felt an ongoing loss of face following the allegations and his reputational damage and had altered self-worth. He had reduced capacity for enjoyment and was no longer interested in his pastime of online gaming.
The applicant was demoralised and dysphoric, without suicidal ideation. He was concerned about his future employment status and financial challenges. He felt he had lost trust with his employer and worried about his future. He often neglected to shower or consume a balanced diet and was socially withdrawn. He experienced phobic responses to Stockland and no longer shopped there, although it was the most convenient place. There was impaired concentration and short-term memory.
A/Prof Robertson diagnosed ongoing adjustment disorder with anxiety. The applicant was accused (falsely in his estimation) of being complicit in a robbery. While his employer exonerated him, without formal apology or acknowledgment of harm, Stockland continued to demonise him, deeming him “a risk”.
This “ongoing psychological affront was the substantial and main contributing factor” to the injury and constituted the psychosocial stressor leading to the applicant’s adjustment disorder. He did not describe other contributing factors to his mental health disturbance.
The applicant had had limited treatment. He had found psychological sessions of benefit but had been unable to afford subsequent treatment. He would benefit from a further 10 to 12 sessions over 12 months. There was not currently an indication for psychotropic or psychiatric treatment.
A/Prof Robertson opined that the applicant was unlikely to be able to return to employment with the respondent at Stockland. He remained apprehensive about further false accusations and the reputational harm sustained by its conduct.
A/Prof Robertson properly accepted that the question of a “reasonable action” defence cannot be adjudicated by an IME (independent medical examiner), other than to note the applicant’s subjective experience of the false accusations was the main contributing factor to his injury.
The applicant’s symptoms were ongoing, and he had not been provided adequate treatment. His symptoms remained moderately severe. He was not fit to resume pre-injury employment with the respondent. Any future employment would be likely to be with another employer and should not proceed until he had had adequate treatment. He could then return to other duties with another employer via a graded return to work program.
If the applicant participated in treatment and re-engaged in the workforce, there was a reasonable prospect of the resolution of the injury.

SUBMISSIONS

The submissions have been recorded. I will therefore summarise the main points.

Respondent

The respondent submitted that the date of injury pleaded is 18 February 2023, the date on which the applicant was stood down with pay. Stockland had raised with the respondent the failure of the CCTV. Staff had been seen in the office at the time Stockland asserted there had been interference with the CCTV.
The respondent submitted that Mr Faljoun disputed that he raised his voice. The applicant was notified by email that he was being stood down. He was offered EAP, and subsequently offered guidance and support by Mr Faljoun, and the opportunity to respond.
The respondent submitted that it gave sufficient information about the allegation, followed by a letter, including details of the allegation, the potential consequences, and support. As regards loss of overtime, the applicant could have had this at another centre, but declined. It could not be said that he was treated unfairly or unreasonably.
The respondent submitted that Stockland investigated and took the view the applicant was a potential security risk. It did not want him working there. A relocation would not have disadvantaged him, financially or otherwise.
The respondent submitted there were two elements to its defence. Firstly, causation – its actions must be causative; and secondly, the injury must be due to its reasonable action with respect to discipline. The date of injury of 18 February 2023 was causative of the applicant’s condition, on his own evidence.
The respondent submitted that A/Prof Robertson did not deal with “wholly or predominantly”. He recorded that the applicant felt “demonised” but did not say this was the cause of his ongoing difficulties.
The respondent submitted that by the time the applicant was examined by the IMEs, he was past the point of going off work, and was involved in the process of the claim and the investigation. More weight should be given to contemporaneous records, including the claim form.
The respondent submitted that there could not be a clearer case of “discipline”. There was a serious allegation by a client, its actions were with respect to discipline, and the injury was caused by its action. This was Dr Young’s opinion.
The respondent submitted that the suggestion the injury was due to “demonisation” of the applicant was inconsistent with the contemporaneous evidence, and there is a question as to whether it was work-related. The action was that of Stockland, not the respondent. The applicant’s IME did not address this, and the respondent submitted I should not give weight to that evidence.
The respondent submitted that the steps it took were part of the disciplinary process, and moving the applicant also fitted into that process. There was no evidence that he had to work at Stockland. It was part of the disciplinary process that he was offered other employment.
As to the reasonableness of its actions, the respondent referred to the decision of Geraghty CCJ in Irwin v Director-General of Education,[2] in which his Honour referred to “fairness”.
[2] NSWCC 14068/97, 18 June 1998 (Irwin).

The respondent submitted that, viewed objectively,
·        the allegations were raised by Stockland and brought to the applicant’s attention. Mr Faljoun denied that he acted in the way the applicant suggested;
·        the applicant was notified the next day by email, and given details of the support available, at an early stage. It was not contradicted that Mr Faljoun offered personal support;
·        the allegations were set out in a letter. The respondent took reasonable steps, including providing details of support, and offering alternate employment, which was declined;
·        there was no suggestion the investigation by Stockland was unfair. The applicant was exonerated, and
·        the respondent communicated this to the applicant.
The respondent submitted that Stockland took the view that the applicant was “a risk”. This was communicated to him. The respondent was complying with its obligations to Stockland. It was reasonable for it to take the steps it did. It offered to move him, and he declined.
The respondent submitted the applicant was well past suffering psychological injury at this time, when the contemporaneous evidence was considered. It acted in a way that was fair, and considered the applicant’s rights, as well as its obligations. It submitted it was almost a model of reasonableness.
The respondent submitted that, if some aspect of its action was unreasonable, that did not mean the whole process was unreasonable. In hindsight, any process could be improved. It is an objective test, and it acted entirely reasonably. It was a regrettable injury, but it could not be laid at the feet of the respondent.
As regards incapacity for work, the respondent referred to the evidence of Dr Young that the applicant could return to suitable duties, working reduced hours. A/Prof Robertson agreed. There was a need for psychological treatment, but they agreed the applicant had capacity to return to work. From May 2023, he had the capacity to work elsewhere on a graduated return to work plan. The respondent had offered him work, and he could work for other security firms. “Reading between the lines”, A/Prof Robertson agreed with Dr Young.
In reply to the applicant, the respondent submitted that causation was quite clear, referring to the contemporaneous evidence and that of Dr Young. The applicant identified the cause as the investigation.
As for the “reasonableness” of its actions, the respondent referred to Bropho v Human Rights & Equal Opportunity Commission[3] and Department of Education and Training v Sinclair.[4]
[3] [2004] FCAFC 16.
[4] [2005] NSWCA 465; 4 DDCR 206 (Sinclair).
The respondent submitted that there is no evidence to suggest that the absence of a support person was causative, from A/Prof Robertson or the applicant. The applicant made no complaint of this, including to his GP.
The respondent submitted that the applicant identified his suspension as causing the problem. If the applicant’s submission that the respondent was only doing what Stockland told it to do were accepted, it asked what else was it supposed to do? It would have mattered not if the respondent had said it looked at the footage and what Stockland said did not appear to be right. Stockland would do what it considered was required.
The respondent submitted it notified the applicant within a couple of days, and he was able to respond, and that was passed on. He was offered alternative work, which was reasonable, and this was rejected. Putting aside a support person, he was offered support.
The respondent submitted it was the suspension that caused the injury. The applicant and his GP said that. It was not before that. The respondent offered him work at an alternate site. It could not influence Stockland.
As regards the submission that it did not follow its own procedures, the respondent submitted that it was necessary, and it had no other option. Having deemed it necessary because the client demanded it, it offered the applicant a different job while the investigation was completed. It did not disadvantage him in any way. It was that, on the evidence, that “tipped the applicant into an adverse psychological condition”.
The respondent submitted that Sinclair held that one does not “pick apart the process”. The applicant had access to the CCTV footage, it was passed on, and he was exonerated. By that time, he had reacted adversely to the suspension. As the client did not want him working there, suspension was the only option. He was offered other work.
The respondent submitted that its reasonable action was causative of the condition, and the defence was clearly made out.

Applicant

The applicant submitted that the respondent’s conduct was not reasonable, let alone a “model” with respect to discipline. It did what Stockland said, without any independent investigation, and took what Stockland said as “gospel”. He submitted that we do not know what Stockland told the respondent.
The applicant referred to his evidence. He submitted that the allegation of “blasting” was important. This was not denied. It was necessary for the respondent to prove that each step it took was reasonable.
The applicant submitted that accusations were made, with no warning or notice, in the presence of others, with no support person. There was a meeting with the National Security Officer, with high-level members of the respondent. It was a serious allegation that could have resulted in criminal proceedings.
The applicant submitted that it was crucial that no one from the respondent viewed the CCTV. It relied on Stockland and took no steps to ascertain it was correct. Only the applicant and George were stood down, while several others were in the office. It was not reasonable that he was stood down and suspended.
The applicant submitted that it was untrue that he was in the office for the longest period. The respondent relied on what Stockland told it, but there is no evidence of that. The applicant gave the respondent notice that the timeframes were incorrect, but the respondent did nothing about it.
The applicant referred to his contract of employment. He could only be suspended if it was necessary to investigate. There was no evidence that the respondent had to stand him down to investigate. It chose not to review the footage. Its ignorance cannot be part of the defence of reasonable action. It took no action to determine whether what Stockland told it was true.
The applicant submitted he was stood down only because Stockland instructed it. Mr Faljoun did as he was told by Stockland. It did not matter that it was not verified. The applicant was accused without warning. The respondent’s evidence is that it was required to adhere to the client’s requirements, but we were not told what they were.
The applicant submitted that there was no way the respondent acted reasonably on
17 February 2023 and 18 February 2023. He was not given formal notice until
20 February 2023.
The applicant referred to Sackville AJA’s decision in Northern NSW Local Health Network v Heggie.[5] He submitted that his rights were not considered at all.
[5] [2013] NSWCA 255 (Heggie).
The applicant submitted that it is necessary to look at the entire process, referring to the decision of Deputy President Roche in St George Leagues Club Ltd v Wretowska.[6] If parts of the process were not reasonable, it cannot be said to have been reasonable.
[6] [2013] NSWWCCPD 64.
The applicant submitted that he was suspended on 18 February 2023, without reason, and was told that formal notice was coming. This was “not good enough”. It was not reasonable that Stockland made the decision to stand down the applicant and George, but not others.
The applicant submitted that the respondent put its financial interests ahead of its employee. The only investigation was the allegations put. There was no evidence that it was necessary to suspend him.
The applicant submitted that there should be a finding that the respondent did not act reasonably, so that “wholly or predominantly” is not determinative. Dr Young referred to matters arising under s 11A but did not say what they were or put a timeframe on them.
The applicant submitted that, as it is accepted that he sustained injury, the date of the injury does not matter. The only issue is whether there was a defence and there was no defence because the actions were not reasonable in relation to discipline.
The applicant submitted there was no evidence that the respondent “stood up for” him or told Stockland his version of events. There was nothing vis à vis Stockland in evidence.
As regards incapacity, the applicant referred to his statement, and submitted his COCs certified him as having no capacity for work. A/Prof Robertson and Dr Young opined that he had no capacity without further intervention. He submitted I would make a finding of incapacity on an ongoing basis.

SUMMARY

Section 11A of the 1987 Act provides:

caused by reasonable actions of employerpsychological injury11A No compensation for “

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

The respondent bears the onus of establishing a defence pursuant to s 11A of the 1987 Act.[7]

Was the applicant’s injury wholly or predominantly caused by the respondent’s action with respect to discipline?

[7] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; Sinclair.

The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused.” The test of causation to be applied is that described in Kooragang Cement Ltd v Bates[8]; Ponnan v George Weston Foods[9] Ltd; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[10]; and Smith v Roads and Traffic Authority of NSW.[11]
[8] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[9] [2007] NSWWCCPD 92.
[10] [2008] NSWWCCPD 96.
[11] [2008] NSWWCCPD 130.
The applicant did not submit that the respondent’s action was not one with respect to discipline.
I am satisfied that the applicant’s injury was wholly caused by the respondent’s action. The evidence is overwhelming that it was. It includes the claim form, the applicant’s statement, the medical evidence, and the description of the injury in the Application, all of which are discussed above.
There is no evidence that the applicant’s injury had any other cause, and his submissions did not point to evidence of any other cause. No previous psychological symptoms were recorded by any medical professional who has treated or examined the applicant.
Both IMEs concluded that the cause of the applicant’s injury was the action taken by the respondent (Dr Young) and his subjective experience of the false accusations (A/Prof Robertson).

Was the respondent’s action reasonable?

Geraghty CCJ said in Irwin:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
In Ivanisevic v Laudet Pty Ltd,[12] Truss CCJ said:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[12] Unreported 24 November 1998
These passages were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan,[13] where his Honour said:
“I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in his Honour’s judgment. The words ‘reasonable action’, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.” (at [42]).
[13] [2003] NSWCA 239; 1 DDCR 57 (Minahan).
In Sinclair, Spigelman J observed that one must look at the entire process to see if it was reasonable action within s 11A of the 1987 Act. That includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi-Lo Pty Ltd;[14]Melder v Ausbowl Pty Ltd).[15]
[14] [1998] NSWCC 13.
[15] [1997] 15 NSWCCR 454 at 458.
The requirement to consider all the circumstances must now be read subject to the observations in Heggie, where Sackville AJA held:
“… [Minahan] is therefore not authority for the proposition that disciplinary action, short of dismissal of an employee or a finding of misconduct, is reasonable only if the decision is based on a consideration of all the circumstances bearing on the truth or otherwise of allegations made against the employee.” (at [58]).
His Honour went on to make the following observations:
“The following propositions are consistent with both the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which those rights are to be given weight in a particular case depends on the circumstances.
(vii)If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (at [59]). (Emphasis in original).
His Honour noted that many actions with respect to discipline, such as suspension on full pay while serious complaints were investigated, were necessarily taken without the employer having the opportunity to establish all the facts. He thought it unlikely that facts or circumstances that were neither known nor ascertainable when the employer took the action could have a material bearing on the reasonableness of that action.
The respondent’s reasons for its action are not decisive, as the test is objective: Jeffery v Lintipal Pty Ltd.[16]
[16] [2008] NSWCA 138 (Jeffery).
The applicant relies on the date of injury of 18 February 2023, which is the date on which he was suspended with pay. I agree with the respondent that the cause of the injury was the applicant’s suspension. In my view, what happened thereafter, while it may have exacerbated or prolonged his condition, was not causative of it. I note his evidence and that of Dr Aboud and Mr Alameddine.
On 17 February 2023, before the applicant was stood down, Mr Fajloun came into the office and spoke to Mr Homsi about the CCTV cameras not recording during a certain period. This had been discovered when the police were investigating a robbery.
The applicant stated that Mr Fajloun had “blasted” him and Mr Homsi. Contrary to the applicant’s submission that this was not denied, Mr Faljoun refuted that he had blasted the applicant and Mr Homsi. He said he was speaking to Mr Homsi, and the applicant was in the office.
I note here that Mr Homsi has not provided a statement. The report of the factual investigation states that several attempts to contact him were made. On 17 April 2023, he declined to provide a statement, as he feared repercussions, due to the fact that several people had been terminated in relation to the matter.
In my view, it was not appropriate for Mr Faljoun to conduct the conversation with Mr Homsi, who was the applicant’s supervisor, in the presence of the applicant, or any other staff member, whether or not he was “blasting” them. It would have been appropriate for this conversation to have been conducted privately. That one event does not render the respondent’s conduct unreasonable.
The applicant’s evidence is that Mr Swain told him the respondent “may look” at suspending him, depending on the outcome of an internal investigation. (My emphasis). At that time, the applicant still did not think he was in any trouble, as he had not done anything wrong. Mr Swain has not refuted this evidence, and nor has Mr Faljoun, who apparently took part in the conversation.
The applicant was, in my view, after this conversation entitled to assume that Millennium would investigate before any action was taken against him. As he had not done anything wrong, he was also entitled to assume that the outcome of the investigation would not be adverse to him, as indeed turned out to be the case.
The applicant has given evidence that he checked the CCTV footage for 8 and
9 February 2023, and he told Mr Homsi of his findings. I see no reason not to accept that evidence.

There is no evidence that anyone else from Millennium checked the footage. Had they done so, which appears to me to be an obvious action, they may have been able to “push back” when Stockland dictated that the applicant and Mr Makdessi be stood down; or at least have provided Stockland with their findings and been able to reassure the applicant it had done so.
In any event, one would assume a company involved in providing security services may have had some interest in finding out exactly what happened to cause what was thought to be a security breach.
As the applicant’s review of the footage revealed that he had not been in the office alone, had not been in the office for 40 minutes, and that “Fits”, who was not stood down, was alone in the office for almost an hour (and it is not of course suggested that Mr Tuliloa did anything wrong), it is not surprising that Mr Dimian could not understand why he was being accused.
I note that there is conflicting evidence about the reason for the applicant being stood down. Mr Swain stated that it was “business HR protocol”, which is assumed to refer to the respondent’s protocol, but it is not in evidence. He also stated that the applicant was stood down to protect him (it is not clear from what) and the integrity of the investigation. Mr Fajloun’s evidence is that Stockland had directed that he be stood down.
In any event, as was held in Heggie, reasonableness is not necessarily established just because the respondent believed that it was compelled to act as it did.
In Jeffery, the injured worker was transferred against his wishes from the school where he worked as a cleaner. This was done at the direction of the school’s principal. It was incontrovertible that the employer’s contract with the Department of Education expressly provided that a school principal may “without being required to give any reason” direct that a contractor was not to engage a particular person at a contract facility, and “the Contractor must comply with such direction”.
Basten JA said (at [44]):
“As appears from the extracts from the reasons of the Deputy President… 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.” (Emphasis added).
At [47], Basten JA went on to say:
“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.” (Emphasis added).
In this matter, I have no evidence about the reasonableness or otherwise of Stockland’s conduct (if indeed it was at its direction that the applicant was stood down). The contract between the respondent and Stockland is not in evidence, and Mr Farhat has refused to provide any evidence.
There is no evidence in this case that the respondent attempted to assist the applicant or advocate for him with Stockland. As he submitted, it appears to have accepted what Stockland said as “gospel”.
This contrasts with the situation in Jeffery, where the worker’s manager took a “conciliatory approach” with the school principal, which was however unsuccessful, and the worker was transferred. The Court of Appeal nonetheless determined the appeal in favour of the worker, while remitting the matter to the Workers Compensation Commission “for further consideration according to law”.
Mr Fajloun’s evidence is that he assured the team, including of course the applicant, that the company would ensure a thorough and fair investigation and fully support it.
It appears that it was later that same day that the applicant was informed that he was being stood down, on Mr Fajloun’s evidence, at Stockland’s direction. As I have noted, there is no evidence that the respondent sought to intervene with Stockland on behalf of its staff, or “fully support[ed]” it in its dealings with Stockland. There is no evidence as to the reasonableness, or otherwise, of Stockland’s conduct.
I do not accept that the respondent’s conduct in suspending the applicant was “reasonable”.
I have determined that it was being suspended that caused the applicant’s injury. I do not accept that the respondent has met the onus of establishing a defence to the claim pursuant to s 11A of the 1987 Act.

Incapacity

I accept that the applicant has had no capacity for work since 18 February 2023. The COCs issued by Dr Aboud have certified him as having no capacity until 9 July 2023 (on the last certificate in evidence).
Dr Young opined in May 2023 that the applicant would benefit from further treatment to achieve a return to work, while at the same time opining that he could resume suitable duties within two to four weeks, upgrading thereafter.
A/Prof Robertson opined that any future employment should not proceed until the applicant had had adequate treatment, which may take up to 12 months, and also advised a graded return to work program.
The applicant has not had adequate treatment, as liability for his claim has been disputed. I do not accept that he has capacity for any work.
The parties have agreed that the applicant’s PIAWE were $950 per week.
The applicant is therefore entitled to payment of weekly benefits as follows:
(a) from 18 February 2023 to 20 May 2023, pursuant to s 36 of the 1987 Act, at the rate of $902.50 per week, and
(b) from 21 May 2023 to date and continuing, pursuant to s 37 of the 1987 Act, at the rate of $760 per week.
The respondent has not submitted that it is entitled to credit for any payments made to the applicant while he was suspended on full pay; and in this regard I note the decision of Member Isaksen in the matter of Viney v Burwood Council,[17]in which he referred to the decision of Arbitrator Harris, as he then was, in Kirkbride v State of New South Wales (Ambulance Service).[18]
[17] [2021] NSWPIC 236.
[18] [2019] NSWWCC 236.
As the applicant has been successful in his claim, he is entitled to a general order for medical expenses pursuant to s 60 of the 1987 Act.
I have determined as follows:
(a)    the date of the applicant’s conceded psychological injury was 18 February 2023;
(b)    the applicant’s injury was wholly caused by the respondent’s action with respect to discipline;
(c) the respondent has not established that its action with respect to discipline was reasonable and does not have a defence to the claim pursuant to s 11A of the 1987 Act;
(d)    the applicant has had no capacity for work since 18 February 2023;
(e)    the applicant is entitled to an award of weekly benefits, and
(f)    the applicant is entitled to an award for medical expenses.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 561

24 October 2023