Dimian v Millennium Security Specialist Services Pty Ltd - [2023] NSWPIC 561

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…

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: [2023] NSWPIC 561
Decision Date: 24 October 2023

CaseChat Overview and Summary

In the case of Dimian v Millennium Security Specialist Services Pty Ltd, the applicant, who was employed as a security guard, sought weekly benefits and medical expenses following a psychological injury. The dispute arose after the applicant was suspended with pay due to an issue with a CCTV recording, despite there being no evidence of wrongdoing on the applicant's part. The respondent's client directed that the applicant be removed from the site, leading to the psychological injury. The respondent argued that it had a defence under section 11A of the Workers Compensation Act 1987, relying on its actions regarding the applicant's discipline and transfer. The applicant opposed the respondent's reliance on its transfer action, asserting that the injury was a result of the disciplinary action.

The court had to determine whether the respondent's actions regarding discipline and transfer constituted reasonable steps under section 11A of the Act. The court considered various precedents including Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, Irwin v Director-General of Education, and others, to understand how similar cases were handled. Ultimately, the court found that the respondent's action with respect to discipline was unreasonable, as it directly led to the applicant's psychological injury. The court held that the respondent was not entitled to rely on its action with respect to transfer, and therefore, the respondent did not have a valid defence under section 11A.

Given that the applicant's injury was wholly caused by the unreasonable disciplinary action and the applicant had no work capacity, the court awarded the applicant weekly benefits under sections 36 and 37 of the Act, as well as medical expenses under section 60. The respondent's appeal regarding the reliance on its action with respect to transfer was dismissed, and the applicant's claim for weekly benefits and medical expenses was upheld.

Orders