Emami v Transit Systems

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Emami v Transit Systems [2025] NSWPIC 80
APPLICANT:	Faramarz Emami
RESPONDENT:	Transit Systems West Services Pty Ltd
MEMBER:	Gaius Whiffin
DATE OF DECISION:	10 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation and treatment expenses pursuant to section 60; consideration of applicant’s and witnesses’ statements, video footage, medical reports and other treatment records, claim correspondence, as well as factual material; respondent accepts that the applicant sustained a psychological injury to which his employment was the main contributing factor and accepts that the applicant has no current work capacity as a result but relies upon a defence to his claim pursuant to section 11A; consideration of whether the respondent can establish that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by it with respect to performance appraisal or dismissal or discipline; consideration of whether the respondent can establish the reasonableness of the actions taken or proposed to be taken by it with respect to performance appraisal or dismissal or discipline; Northern NSW Local Health Network v Heggie, Nguyen v Cosmopolitan Homes, Pirie v Franklins Limited, Department of Education and Training v Sinclair, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portugese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, Drca v KAB Seating Systems Pty Ltd, Melder v Ausbowl Pty Limited, Buxton v Bi-Lo Pty Ltd, Ritchie v Department of Community Services, Secretary of the Department of Foreign Affairs and Trade v Styles & Anor, Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad, and Rail Corporation NSW v Aravanopules considered; Held – the respondent has failed to establish (pursuant to section 11A) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal or dismissal or discipline; awards for the applicant for weekly benefits compensation and expenses pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. I amend the name of the respondent (as advised by it in its reply) to Transit Systems West Services Pty Ltd. 2. I amend the Application to Resolve a Dispute so that the applicant’s injury is pleaded as an occupational disease with a deemed date of 14 February 2024. 3. As a result of the applicant’s involvement in a motor vehicle accident on 29 January 2024, as well as the respondent’s processes and actions from that date with regard to its investigation into the accident and its subsequent disciplining of the applicant, the applicant has sustained an injury (deemed to have occurred on 14 February 2024) pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), being a psychological injury. 4. The respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal or dismissal or discipline. 5. The applicant has been incapacitated for work as a result of the psychological injury since 14 February 2024. He has had no current work capacity since then. He has not received weekly benefits compensation since 19 May 2024. 6. The applicant’s pre-injury average weekly earnings (PIAWE) is $1,947.23. This amount is adjusted, when relevant indexing is applied, to $1,980 from 1 April 2024, and to $2,020 from 1 October 2024. 7. The applicant is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent. The Commission orders: 8. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 19 May 2024 to 30 September 2024, at the rate of $1,584 per week. 9. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 1 October 2024 to date and on a continuing basis, at the rate of $1,616 per week. 10. The parties are given liberty to apply to the Commission on or prior to 28 March 2025 regarding the correctness of the calculations in determination 6 and orders 8-9. 11. There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Faramarz Emami (the applicant) is 54-year-old and commenced employment with Transit Systems West Services Pty Ltd (the respondent) as a bus driver in 2019.
While he was driving a bus in the course of his employment with the respondent on
29 January 2024, he was involved in a motor vehicle accident (the accident). He alleges that as a result of his involvement in the accident, and as a result of the respondent’s processes and actions from the date of the accident with regard to its investigation into the accident and its subsequent disciplining of him, he sustained a psychological injury.
The applicant has not worked since 14 February 2024 due to this psychological injury. The respondent initially paid weekly benefits compensation to him in this regard, until
19 May 2024.
On 11 June 2024, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to his psychological injury. It also issued a further notice denying liability under s 78 of the 1998 Act dated 5 September 2024 (following a request for a review of its earlier notice).
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (Commission), the applicant claims weekly benefits compensation from 19 May 2024 to date and on a continuing basis pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act), as well as payment of his medical expenses in relation to his treatment for his psychological injury pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

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

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to these proceedings 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 proceedings 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 in the proceedings.
The proceedings were listed before me for conciliation/arbitration on 14 February 2025. On that occasion, Mr Josh Beran of counsel appeared for the applicant, instructed by Mr Guerra, and Mr Graham Barter of counsel appeared for the respondent, instructed by Ms Singh. The applicant was present in person and assisted by a Farsi interpreter (Mr Baghar Ghazavi – CPN2ZQ850). Representatives from the respondent were also present, Ms Rebeiro and
Ms Heron.
During the conciliation phase on 14 February 2025, the respondent was able to concede that the applicant had sustained a psychological injury in accordance with s 4 of the 1987 Act, and that he had had no current work capacity as a result of that injury since 14 February 2024. The respondent however maintained that it had a complete defence to the applicant’s claim in relation to the injury, pursuant to s 11A of the 1987 Act.
The proceedings therefore proceeded to an arbitration hearing before me solely in relation to this defence. The issue for me to determine (see paragraph 6 above) was agreed between the parties.
It was further agreed between the parties that if the respondent was successful in establishing its defence, an award would be entered in its favour. However, if the respondent was unsuccessful in establishing its defence, awards would be entered in favour of the applicant:
(a) a ‘general’ order in his favour pursuant to s 60 of the 1987 Act, and
(b) an award for ongoing weekly benefits compensation from 19 May 2024, pursuant to s 37 of the 1987 Act, on the basis of the applicant having no current work capacity during that period and on the basis of an agreed unadjusted PIAWE of $1,947.23.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered by me in making this determination - no objection was raised to their admission:
(a) the ARD and its attached documents;
(b) the respondent’s Reply (Reply) and its attached documents – incorporated within an Application to Lodge Additional Documents dated 12 December 2024 - the documents were admitted as being necessary to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings in accordance with cl 67C(4) of the Personal Injury Commission Rules 2021 (the Rules);
(c) the respondent’s Application to Lodge Additional Documents dated
10 February 2025 (respondent’s ALAD) and its attached video footage - also admitted in accordance with cl 67C(4) of the Rules, and
(d) the applicant’s Application to Lodge Additional Documents dated 12 February 2025 (applicant’s ALAD) and its attached documents - also admitted in accordance with cl 67C(4) of the Rules.

Oral evidence

There was no oral evidence given during the arbitration hearing.

Video footage

Video footage of the accident was provided by the respondent in the respondent’s ALAD. The video footage shows simultaneous recordings from five cameras placed upon the bus that the applicant was driving at the time of the accident. I have carefully perused the video footage, including where necessary frame-by-frame viewing (and many instances of rewinding). I find that the video footage demonstrates the following:
(a)    the footage commences with the applicant driving the bus on 29 January 2024 at 8:55:01am – the applicant is at the time following another bus;
(b)    the footage shows that at 1:18, a man in a yellow vest (the pedestrian) comes into view – he has his left hand raised presumably requesting that the bus stop, although there is no indication that he is at a designated bus stop;
(c)    the applicant brings the bus to a stop behind the bus in front of the applicant’s bus – the pedestrian proceeds to walk to the door of the bus where he gesticulates in a manner suggesting that he wishes to enter the bus – the applicant does not open the doors;
(d)    the pedestrian then walks in front of the bus while the bus is stationary - he again gesticulates and otherwise appears to me to be acting in an erratic manner;
(e)    the footage shows that at 1:42, the bus in front of the bus being driven by the applicant commences to move again - the applicant commences to move his bus, turning his steering wheel considerably, presumably in an attempt to avoid a collision with the pedestrian;
(f)    the footage shows that at 1:43-1:44, the pedestrian strikes the front left-hand corner of the bus with his right hand – there are then frames in the footage (taken by the camera directed at the bus’ doors) which show him with at least one of his feet on the ground as the bus begins to pass him - he then attempts to hold on to the front left-hand corner of the bus with both his hands, he loses his balance, and he falls to the ground - during this period, the camera on the bus directed at the applicant shows the applicant consistently looking towards the front left-hand corner of the bus;
(g)    after the pedestrian’s fall, the applicant brings the bus to a stop (shown in the footage at 1:54) without making any turn - and by 1:57 in the footage, he has picked up his radio in his right hand and placed it to his right ear;
(h)    the pedestrian is then seen to walk alongside the entire left-hand side of the bus to its doors, where he bangs on the doors and again acts in an erratic manner (at 2:13 in the footage) – he then wanders in front of the bus before leaning up against the doors of the bus and banging on the doors again (at 3:41 in the footage) - during this period, he does not appear to be injured – during this period, the applicant is seen constantly with his radio in his right hand and placed against his right ear (he seems to be talking into the radio);
(i)    the footage shows that at 3:56, the pedestrian finally walks away from the bus, and the applicant begins to drive the bus again, initially moving his radio away from his right ear - he however then drives the bus with his radio still in his right hand and placed against his right ear (again, he seems to be talking into the radio);
(j)    the footage shows that at 5:25, the applicant again brings his bus to a stop – he continues talking on his radio until 9:45-9:49 in the footage, when he commences to drive the bus again, and when he puts his radio down, and
(k)    the rest of the footage is unremarkable, as the applicant continues to drive his bus without further incident, until the footage finishes at 15:02.

Respondent’s statement evidence

The respondent relies upon statement evidence given by Chen Chen (Chen) and Lester Timms (Timms).
Chen’s statement dated 11 March 2024 is found at page 1 of the Reply. He is a staff supervisor with the respondent, and he reports to Timms. The applicant reports to both himself and Timms. He advises that the applicant’s first language is not English, but that he is able to “communicate moderately” in English. He advises that prior to the accident, the applicant had been provided with warnings from the respondent on 8 February 2022 and on 6 July 2022. He had been “counselled over the years pertaining to poor customer service, at fault accidents, failing to stop, and on time running”.
Chen says that the respondent has an incident reporting process, and that accidents are required to be reported through a radio room (OCC) as soon as they occur.
Chen says that he viewed the video footage of the accident, and he makes the following relevant comments in this regard:
“The bus in front moved off, as the lights had turned green and the Claimant then slowly tried to drive around the pedestrian who was on the road in front of the bus. The male was seen hitting or grabbing the front windscreen, then he fell to the ground. I do not know if the bus collided with the pedestrian…The Claimant continued and made a left turn, but was blocked by the bus in front, because the bus in front stopped after it turned left…The pedestrian then stood up and chased the bus and stood in front of it. He was waving and jumping up and down. He banged on the front door of the bus before he went to the front of the bus. The Claimant then called OCC…I do not know if the Claimant called OCC several times…The bus in front moved off and the pedestrian sat back down in the flowerbed and the Claimant drove off to continue the service…The first time I spoke to the Claimant about this incident was on 7 February 2024.”
Chen says that he has no knowledge of another incident involving the applicant occurring on 2 February 2024, but that he is aware of an incident involving the applicant on
10 February 2024 at Drummoyne, when a car collided with a bus being driven by the applicant. He says that he did not speak to the applicant about this incident as it did not involve any injuries, but only minor damage to the bus.
Chen says that once he and Timms viewed the video footage, they considered that the applicant “had driven dangerously”, and they decided that they would “issue a Show Cause notice to the Claimant to decide what action was required and an Advice of Disciplinary interview to attend an interview on 7 February 2024”. He says:
(a)    he issued the applicant with an Advice of Disciplinary Interview on
6 February 2024;
(b)    a meeting was held between Timms, the applicant, a union representative of the applicant’s, and himself on 7 February 2024 (the 7 February 2024 meeting) – at which the applicant was provided with a Show Cause Notice (mistakenly dated
5 January 2024) and asked to respond to that notice by 8 February 2024, following which another meeting would be held on 9 February 2024;
(c)    Timms received a written response from the applicant on 8 February 2024 – then on the evening of that date, Timms also received an email from the applicant’s union representative with a response that the union representative had written on the applicant’s behalf - he says that the two responses were “quite different” and he does not know why both responses were provided;
(d)    the scheduled meeting on 9 February 2024 did not proceed, but he does not know why, and
(e)    instead, a meeting was held between Timms, the applicant, a union representative of the applicant’s, an “interpreter” for the applicant, and himself on 13 February 2024 (the 13 February 2024 meeting) - the applicant was then issued with a letter (mistakenly dated 13 January 2024) containing a “final written warning” and requiring the applicant to undergo remedial training – the applicant was also issued with a Record of Disciplinary Action - he says that both documents were interpreted to the applicant and the applicant signed them both - he says that the applicant was not advised that if the applicant signed the documents the applicant’s employment would be unaffected, instead the applicant was advised that if the applicant signed the documents, the applicant would receive a written warning “(as opposed to a more serious outcome)” since the respondent would accept the email sent by the applicant’s union representative to Timms on the evening of 8 February 2024 as demonstrating remorse.
Chen opines:
“It was appropriate and reasonable to issue the Show Cause letter as the Claimant had potentially breached NSW Road rules, the Insured’s policies and the Code of Conduct…It was reasonable to provide the Claimant with a final warning as we found that he had breached NSW Road rules and the Insured’s policies and procedures.”
Chen is no more specific regarding the particular rules, policies, procedures, or code of conduct breaches.
Timms’ statement dated 8 March 2024 is found at page 14 of the Reply. He is responsible for the day-to-day operations of the respondent’s Burwood bus depot. He repeats Chen’s comments (see paragraph 16 above) regarding the applicant’s prior warnings from the respondent. He refers to the applicant’s induction and training, and he advises that the applicant “signed off” on the respondent’s policies and procedures and code of conduct.
Timms’ viewing of the video footage of the accident is slightly different to Chen’s. He makes the following relevant comments:
“The male banged on the side of the bus at the front as well as on the door at the front, signaling [sic] to be let in…When the bus in front moved off, the male was standing in front of the bus. The Claimant then started to drive around the male, however, made contact with the male and knocked him to the ground, where he banged his head…When the Claimant arrived at the lights to turn left, the male stood in front of the bus again, however moved to the side and banged on the side of the bus as it passed him…The Claimant stopped not long after he turned at the lights and called OCC (Radio room) and advised of the incident. However, he did not inform OCC that he knocked over the male. I have read the transcript. OCC then sent an email or text message describing the incident…I am not aware if the Claimant tried to contact OCC several times before he got through. If he did, it may have been that OCC were tied up with another matter…The first time I spoke to the Claimant about this incident was on 7 February 2024.”

Timms then confirms Chen’s statement (see paragraph 19 above) regarding the incident involving the applicant on 10 February 2024, and regarding there being no record of an incident involving the applicant on 2 February 2024.
Timms describes watching the video footage with Chen. It appeared to him that the applicant “drove his bus dangerously when he hit a person on the road”. He telephoned his area manager and sent the video footage to that person. He obtained a radio file from OCC “which contained the conversation between the Claimant and OCC when he reported the incident”. He says that Chen and he decided to issue a Show Cause Notice to the applicant.
Timms’ description of the time-line of the applicant’s disciplinary process from
6 February 2024 is then described by him often in almost identical language to Chen’s description (see paragraph 20 above), although I note:
(a)    Timms mentions that during the 7 February 2024 meeting, the applicant “believed that he had done nothing wrong” - whereas Chen cannot remember in this regard;
(b)    Timms says that the applicant did not attend a scheduled meeting with him and Chen on 9 February 2024;
(c)    Timms says that the applicant was not informed that the applicant’s employment would be affected if the applicant did not sign the documents presented to the applicant during the 13 February 2024 meeting - a different recollection to Chen’s, and
(d)    Timms goes further than Chen in explaining the significance of his acceptance of the email sent to him by the applicant’s union representative on the evening of
8 February 2024 – “I said to the Claimant that if I had to accept the letter he provided me as his response to the allegations, then because he had shown no remorse, willingness to receive additional training or concern for the welfare of the person he had knocked down with his bus, I would have to consider an alternative punishment to a final warning letter. Once the interpreter told him that, I think the Claimant understood that the lack of regard for the pedestrian safety was my issue. The Claimant then signed the documents.”
Again, in almost identical terms to Chen (see paragraph 21 above), Timms states:
“It was reasonable to issue the Show Cause letter as the Claimant had potentially breached NSW Road rules, the Insured’s policies and the Code of Conduct…It was reasonable to provide the Claimant with a final warning as we found that he had breached NSW Road rules and the Insured’s policies and procedures.”
Timms is no more specific regarding the particular rules, policies, procedures, or code of conduct breaches.

Respondent’s medical evidence

The only medical evidence contained in the Reply (at page 59) is a report from a medico-legal specialist, Dr Young, dated 17 May 2024.
The doctor obtains a history that following the accident, the applicant felt stressed during the remainder of that day and after he went home. He however returned to work the following day, but “continued to feel a degree of anxiety and felt distracted at times”. He was then given a letter on 5 February 2024 (should read 7 February 2024) asserting that he was at fault at the time of the accident, which caused him to be “shocked and distressed by this as he had done nothing wrong”. The doctor then records:
“He continued to work over the subsequent week and there were further discussions with management regarding the incident. He said that he felt further distressed by this and began to feel increasingly anxious at work, irritable and tearful. He said because of these actions he felt unsupported by his employer and treated unfairly in relation to the incident. He was particularly distressed over a statement which he said that he was coerced into signing in relation to the incident when he later discovered the wording had been misrepresented to him. He said that following this incident which he attributed as being the major cause of his symptoms he felt further stressed, irritable, depressed, tearful with more severe insomnia, experiencing nightmares and thoughts of dying...Following this he contacted his GP who certified him as unfit.”
The doctor takes a history of the applicant not experiencing any previous psychological symptoms. He conducts a mental state examination and diagnoses the applicant with an unresolved adjustment disorder. He opines that the applicant’s employment with the respondent was the main contributing factor to the development of the adjustment disorder. He opines that the applicant is unfit for any work.
When questioned specifically regarding when the applicant’s psychological symptoms commenced, and regarding the whole or predominant cause of the symptoms, the doctor opines:
“The significant psychological symptoms commenced following the initial meeting following up the incident occurring on 5 February 2024…According to the history as described, the whole or predominant cause of his injury is related to the investigation into his actions in relation to the incident of 29 January and the discipline and written warning issued to him following the incident including the potential dismissal as a consequence of his actions.”

Respondent’s other evidence

The respondent (in its Reply) relies upon various of its records in relation to the applicant’s disciplinary process following the accident, as instituted by Chen and Timms. Unfortunately, some of these records are unsigned. There is also no specific adoption of any of the records (which would have been appropriate in order to not only provide them with more weight, but also context) in the statement evidence of Chen and Timms, by for example annexing the records to the statements.
Nevertheless, I am willing to accept the accuracy of:
(a)    the Show Cause Notice (signed by Timms) provided to the applicant during the
7 February 2024 meeting is found at page 39 of the Reply – it accused the applicant of hitting a pedestrian with the near side front corner of a bus that he was driving, as well as driving off without checking the welfare of the pedestrian, and it alleged “this incident is deemed as HIT AND RUN [emphasis in original] and put the pedestrian’s life in danger” - it stated that the allegation “of a hit and run is a breach of NSW Road Rules, Transit Systems Policies and Code of Conduct ‘Comply with the laws, regulations and contract commitments that apply to our operations’” (no more particulars provided), and it advised that if the allegation is proven, a direct contravention of the respondent’s safety procedures and reputation will also be proven - it asked for a written response from the applicant before 8 February 2024, and it advised as to a follow-up meeting on
9 February 2023 [should read 9 February 2024];
(b)    the letter sent by the applicant to Timms on 8 February 2024 is found at page 44 of the Reply (the letter is not signed but the applicant conceded during his oral submissions that it was the letter sent by him on that date) – the applicant advises that:
(i)the pedestrian’s behaviour “exhibited signs of aggression and abnormality” - the applicant did not open the doors of the bus “to ensure the safety of both passengers and me, as there was a genuine concern that allowing entry could pose a threat”;
(ii)it was the pedestrian that initiated contact with the bus, rather than the bus colliding with the pedestrian – he had struck the bus twice “with their fists”, which caused him to lose balance and fall to the ground;
(iii)the pedestrian immediately resumed his aggressive behaviour following his fall, indicating his “physical capability and lack of mobility issues” - he was not exhibiting any signs of pain, but was instead engaging in aggressive actions, and
(iv)the applicant “promptly followed all safety protocols” and reported the accident to the OCC, requesting that the Police be called;
(c)    the email received by Timms from the applicant’s union representative on the evening of 8 February 2024 is found at page 43 of the Reply (the email is not adopted by Timms in his statement, but the applicant conceded during his oral submissions that it was the email sent by the union representative on the evening of 8 February 2024) – the email is framed as a letter from the applicant to Timms, even though it is sent from the union representative and the applicant is not even copied into the email – the email advises:
“I am very remorse [sic] and apologetic of my actions which could have been avoided. At that point of time looking at the pedestrians facial expression I was very scared and was panicked…There was no excuse as a professional bus driver of not stopping at the incident for that I’m really sorry…I am also wiling [sic] to go under any training provided and once again like to apologise of my actions and I hereby promise that this will not happen again”;
(d)    the letter (signed by both Timms and the applicant) provided to the applicant during the 13 February 2024 meeting is found at page 41 of the Reply – the letter claims that the video footage of the accident “showed that you have made contact with a pedestrian whom allegedly tried to board your bus at the traffic lights, in which you reacted by driving into him, knocking him to the ground with the bus. You then continued driving without checking the welfare of the pedestrian, you only stopped because another bus in front blocked your path” - the letter advises that these actions contravene the respondent’s policies and procedures as well as “NSW road rules” (again no more particulars provided) - the letter further advises that normally, a driver who had shown such “disregard for so many of Transit policies and procedures” would have their employment terminated, but due to the applicant’s satisfactory employment record, a final written warning would be issued instead, and the applicant would be required to undertake remedial training;
(e)    a Record of Disciplinary Action (signed by Timms, the applicant, and the applicant’s union representative) dated 13 February 2024 is found at page 46 of the Reply – the record does little more than confirm the final written warning given to the applicant on that date, and
(f)    a document entitled ‘Disciplinary Procedure’ (signed by Chen on
13 February 2024) is found at page 36 of the Reply – the document does little more than provide a checklist of actions undertaken by Chen in relation to the applicant’s disciplinary process following the accident.
The Reply also contains:
(a)    a document entitled ‘Incident Detail’ at page 35 – the document is said to have been prepared by Edwina Krasnowski and it contains a very brief description of how the accident occurred – I do not intend to afford the document any weight as it is unsigned, and as Edwina Krasnowski has not otherwise provided any statement evidence - I am unsure of her role in the respondent’s investigation into the accident;
(b)    a document entitled ‘Advice of Disciplinary Interview’ at page 37 - the document is unsigned, although it is said to be from Chen to the applicant, - it should have been adopted in Chen’s statement evidence, but in context, I believe that I can infer that it was the document referred to at paragraph 20(a) above – it accuses the applicant of performing “unsafe driving manoeuvres”, including hitting a pedestrian with the near side front corner of his bus, and then driving off without checking the welfare of the pedestrian;
(c)    a document entitled ‘Incident Report and Request for Legal Assistance’ at page 38 – the document seems to be a letter sent by the applicant to someone called Dorsa but it is unsigned and undated, and its context is not clear – I do not intend to afford the document any weight;
(d)    some documentation between pages 47 and 57 relating to disciplinary action and remedial training undertaken by the applicant prior to the accident – I will detail this documentation further if its relevance to the issue which I need to determine is raised during the parties’ submissions, and
(e)    a document entitled ‘Relevant Enterprise Agreement provision/Policy/Practice’ at page 58 – the document is dated 6 February 2024 but unsigned and unaddressed and it is not referred to in the statement evidence of either Chen or Timms – I do not intend to afford the document any weight.

Applicant’s statement evidence

The applicant has provided three statements. The first statement is dated 20 March 2024 and found at page 4 of the ARD. The statement was prepared by an investigator, following an interview with the applicant, at which the applicant was assisted by an interpreter.
The applicant confirms that he has been employed by the respondent as a bus driver since 2019, based out of its Burwood depot. He reports to Chen. He had received induction and training from the respondent, and had been provided with its policies and procedures.
He describes the accident as follows:
“The male jumped up from the road and in front of the bus I was driving. I was driving very slowly. He waved his arms and hands in the air. He asked me to open the doors. He was angry. I was not at a bus stop. Bus drivers are not allowed to stop and pick up or drop of passengers if not at a bus stop…I said that I could not stop the bus and I motioned him away. As I went to turn left, the male made physical contact with the front left corner of the bus with his hands. He was the one that instigated the contact. I did not drive into him. I was driving slowly…The male fell to the road. He very quickly stood up and started to punch the doors on the front left of the bus. I stopped the bus. The male then went back to the front of bus and had his arms wide open. He then hit the front side of the bus again…I then called the Control room over the bus radio. I pushed the button on the radio several times as there was no answer. The male acted aggressively. He was punching the doors…There is a button on the external of the bus next to the door, that opens the door if pressed. I was scared that the male would press the button. There was supposed to be a covering over the button, which makes it less obvious that there is a button underneath…Another male then put his arm around the aggressive male and guided him off the road…I then started driving the bus again and turned left at the lights onto Seven St, Campsie. There was a bus stop nearby. I stopped at the bus stop even though that stop is not on my bus run/schedule…I again called the Control room. I received an answer and relayed the incident that had just occurred. The Control room told me that the driver of the first bus had called the Control room and told them everything that occurred, as the bus driver in that bus witnessed what occurred through his rear vision mirror…I asked the Control room what I should do. I was told if the passengers and myself were okay, then I could continue driving. I then continued on with the service, as I deemed it was safe to continue.”
The applicant also advises as to another incident which he says occurred on
2 February 2024 when the bus that he was driving was overtaken by a car which swiped the right side of the bus. The driver of the car did not initially stop, but stopped a few minutes later when the applicant was at a bus stop. The applicant and the driver swapped contact details. The driver accused the applicant of hitting his car. The applicant says that he experienced stress and was shaking at the time. The applicant however continued working.
The applicant says that:
“Sometime after the incident, I met with Lester at his request to talk about the incident. He told me it was my fault because the bus hit the male and I kept going. I told Lester that I stopped the bus where it was safe. He told me that I should have checked on the male to ascertain if he was okay. I told Lester that I was scared to exit the bus and that the male quickly rose to his feet when he hit the ground.”
Presumably, the applicant is referring to the 7 February 2024 meeting in this regard, although he later says in his statement that he met with Timms on 5 February 2024 and received a Show Cause Notice on that date. Also confusingly, the applicant then refers to a meeting between Timms, Chen, himself, and his union representative on 9 February 2024 (which both Timms and Chen say did not occur), when he was provided with a letter which he refused to sign.
In any case, the applicant then refers to the 13 February 2024 meeting at which he “was told that I had no choice but to sign the letter and that it would not affect my employment”. I can infer the relevant letter to be the one discussed at paragraph 33(d) above. The applicant says that he did not understand the contents of the letter and felt pressured to sign it. He was “misled to believe its insignificance”, and only understood its significance when his son later read and translated it to him. He maintains that the allegations against him referred to in the letter were either inaccurate or unjustified. He says:
“The primary source of distress for me, significantly impacting my emotional well-being, is the falsity of the accusations…I was upset at being pressured to sign the letter and that the letter made me out to be a liar.”
He says that he last worked on 13 February 2024, and sought medical attention on the following date.
The applicant’s second statement is dated 29 October 2024 and found at page 1 of the ARD. The applicant was provided with the assistance of an interpreter in order for the statement to be prepared. The statement clarifies a number of matters, and provides an update regarding the applicant’s treatment for his psychological condition.
The applicant clarifies:
(a)    he reported his accident on 2 February 2024 to the respondent’s “control room”, but was sent no form to sign in relation to it;
(b)    in relation to his remorse in relation to the accident, he expressed his regret in one of his meetings with Timms and Chen “even though I believe I did nothing wrong”;
(c)    during the 13 February 2024 meeting, he “struggled to grasp the situation fully” due to his limited command of English and the lack of a qualified interpreter (only a friend of his) being present - he also claims that he was pressured by his union representative on that day to sign the letter that he was then provided with “despite my repeated clarifications that I had not hit anyone”, and
(d)    “Regarding the incident on 29 January 2024, what mentally affected me the most was that the pedestrian was extremely angry and aggressive, banging on the bus doors. I was terrified and afraid for my life…My employer intimidated me by saying that I had committed a criminal offence because I had done a hit and run…I consulted with my treating GP [regarding] the mental stress caused by these events.”
The applicant then advises in his second statement that he was then receiving treatment from a psychiatrist (Dr Kumar), a psychologist (Roshanak Vahdani), and his general practitioner (Dr Roshandel). He had been prescribed medication.
He was unfit to drive public transport vehicles; he had withdrawn socially; he had flashbacks and nightmares about “hitting people with the bus”; he had disturbed sleep, and his flatmate performed most of his errands for him.
The applicant’s third statement is dated 7 February 2025 and found at page 3 of the applicant’s ALAD.
The applicant clarifies:
(a)    on the date of the accident, the applicant did not open the bus’ doors for the pedestrian as the pedestrian was not at a designated bus stop (during his training, he had been instructed not to open bus doors to pedestrians who are not at a designated bus stop) and as the pedestrian was behaving aggressively – he was concerned for his safety and the safety of his passengers as the pedestrian was “very aggressive and appeared intoxicated”;
(b)    the applicant found being accused of a ‘hit-and-run’ incident by the respondent to be “both false and deeply offensive”;
(c)    the applicant denies that he had the assistance of a qualified interpreter during the 13 February 2024 meeting – the person who was providing some interpretation assistance to him on the telephone that day was a friend and not a qualified interpreter, and
(d)    “I felt attacked, cornered, and ambushed by Mr Chen and Mr Timms. They made me feel as though I had killed someone [and] fled the scene…During my meetings with Mr Chen and Mr Timms, I felt disgusted by the way I was treated. They made me feel as if I had committed a serious crime. I was falsely accused of something I did not do.”

In relation to his psychological reaction, the applicant advises that after the accident, he was overwhelmed with fear, and he felt numb and scared. He was unable to sleep or eat that night. He later advises that the unreasonable conduct of Chen and Timms during his meetings with them “left me extremely upset, angry and depressed”.
The applicant’s injury claim form (dated 21 February 2024) is found at page 44 of the ARD. In relation to the question – “What happened and how were you injured?”, the applicant solely recites details of the accident and summarises – “This made me anxious and I suffered psychological injury as a result”. He does not mention any disciplinary process, or the actions of Chen and Timms, as causative of his injury upon the claim form.

Applicant’s medical evidence

The applicant’s solicitors arranged for him to be examined by a medico-legal specialist,
Dr Kumagaya. The doctor’s report dated 8 August 2024 is found at page 56 of the ARD.
The doctor obtains a history of the accident that is broadly consistent with the applicant’s statement evidence as to how it occurred. He notes:
“Mr Emami reflected upon how he became concerned regarding his personal safety during his work, given the hostile and aggressive demeanour of the individual, as well as the prospects of being involved in further incidents of a similar nature.”
The doctor then takes a history of a second accident (reported by the applicant as occurring on 2 February 2024, but suggested by Chen and Timms as occurring on 10 February 2024). The doctor takes a history that this accident heightened the applicant’s psychological distress.
The doctor then takes the history of the applicant receiving a Show Cause Notice, the applicant replying to that notice, and the applicant being issued with a final written warning during the 13 February 2024 meeting. The applicant’s psychological symptoms were then such that he was unable to continue working beyond 13 February 2024.
The doctor also takes a history of the applicant not experiencing any previous psychological symptoms. He discusses the applicant’s current functioning and treatment history with him, and he conducts a mental state examination. He diagnoses the applicant with a major depressive disorder with anxious distress. He opines that the applicant’s employment with the respondent was a substantial contributing factor to the development of the major depressive disorder with anxious distress. He opines that the applicant is fully incapacitated for any work.
The doctor is specifically questioned regarding Dr Young’s opinions and he advises that his main difference of opinion relates to causation of the applicant’s psychological condition. He opines:
“Having assessed Mr Emami and considered the totality of the available medical evidence, Mr Emami’s psychological symptoms commenced as at the point of his index workplace incident on 29 January 2024. Mr Emami described how he was accosted by an intoxicated individual during the course of his work duties and was exposed to hostility and aggression. Mr Emami described the onset of depressive and anxious symptoms as a result of this incident – he noted, in particular, how he experienced anxious cognitions regarding his personal safety during his work, as well as concern that he would be involved in further incidents of a similar nature…The onset of Mr Emami’s psychological symptoms is significant, as this firmly predates any actions taken or proposed to be taken by his employer in relation to discipline, performance appraisal, or termination…Mr Emami described how his subsequent workplace incident on 2 February 2024 only served to aggravate his depressive and anxious psychological symptoms, and reinforce his depressive and anxious cognitions in relation to his workplace. He also described a pronounced prejudicial influence on his confidence, as a result. Although it is not disputed that Mr Emami’s employer took actions in relation to discipline or performance appraisal on 5 February 2024 [actually 7 February 2024] and 13 February 2024, it is clear that such actions were not causative of Mr Emami’s psychological injury, which had already arisen as a result of his workplace incident on 29 January 2024, but only served to further destabilise his already unstable mental state…Having considered the totality of the available evidence, and having had the opportunity to assess Mr Emami, I maintain my medical opinion that Mr Emami’s workplace psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by his employer in relation to discipline, performance appraisal, or termination.”
The applicant also relies upon a medico-legal report from his general practitioner,
Dr Roshandel, dated 11 September 2024 (which is found at page 52 of the ARD).
The history provided to the doctor by the applicant is broadly consistent with his statement evidence as to how the accident occurred. The doctor specifically notes that the applicant was scared by the “extremely angry and aggressive” behaviour of the pedestrian and was “afraid for his life”.
The doctor records that about 10 days after the accident, the applicant was told by the respondent that the accident was his fault, and that it was a ‘hit-and-run’ situation and a crime. The doctor records that the applicant stopped working a few days later due to experiencing severe anxiety, including nightmares.
The doctor outlines the applicant’s current psychological symptoms and the treatment prescribed for those symptoms, including medication and referra to a psychologist and to a psychiatrist.
In relation to causation, the extent of the doctor’s opinion is:
“I believe that Framaraz [sic] Emami has Major Depression which has been started after the index incident at work…I also believe his work place events was main factor to cause his depression.”
There are no medico-legal reports in evidence from either the applicant’s treating psychologist or his treating psychiatrist. There is however in evidence an Allied Health Recovery Request completed by the applicant’s treating psychologist (Roshanak Vahdani) on 20 March 2024 – found at page 68 of the ARD.
Relevantly, in the diagnosis section of the Request, the psychologist does not refer to the accident in itself as being causative of the applicant’s psychological condition, but rather the psychologist refers to the disciplinary process which commenced with a meeting on
5 February 2024 (should refer to the 7 February 2024 meeting), and refers specifically to Timms’ insistence that the applicant sign the letter that was provided to him during the
13 February 2024 meeting. The psychologist records that the applicant “said that the behaviour of his manager constituted bullying as lies had been said about him which were not true and now his employment was at risk”. The psychologist also records that since the 13 February 2024 meeting, the applicant’s “mental health has been suffering badly”, as he “keeps going over what happened and cannot see what he has done wrong”. The psychologist further records:
“He felt totally devastated and lost trust [with] his employer and went off work on 13^th February 2024 on Workcover. He also said that he has been so distressed that he has already been involved in a car accident where it was his fault as he was unable to focus thinking continually about what happened to him. He says he feels totally betrayed now by his employer and feels very unwell and distressed.”
The Request also makes it clear that the aim of the psychologist in providing treatment to the applicant is to deal with issues relating to the disciplinary process instigated against him –
“This client has had very little psychological treatment since he experienced the injury and is extremely traumatised and dysregulated. He does not understand why he was made to sign a document that was not truthful and in receipt of this was given a warning which could end his career as a bus driver with the company. My aim would be to help him find trust and to engage him by providing a safe space to process the traumatic experiences he has had as a result of his injury and the barriers he has faced in getting help.”
There are numerous certificates of capacity in evidence (attached to both the ARD and the applicant’s ALAD), issued by Dr Roshandel. Unfortunately however, only one of them (dated 14 February 2024 – at page 89 of the ARD) answers the question – “How is the injury related to work or the motor vehicle accident?”. The answer is brief and not overly helpful – “he was bullied and harassed at work”.
Finally, there are clinical notes from Dr Roshandel in evidence (from page 110 of the ARD). I have considered these notes and refer to relevant extracts from them below. I will detail any other relevant extracts from the notes if specifically directed to them during the parties’ submissions. Otherwise:
(a) the applicant first consulted with the doctor in relation to his psychological injury on 14 February 2024 – the notes then record:
“has had issues at work after an icndient [sic]…says somebody approached his bus and banged on his window…his manager reviewd [sic] the case and accused him of hit a drun [sic]…he signed a form but due to poor english did not know what he is [sic] signing…feels he was picked on and been bullied and harassed”, and
(b) the doctor referred the applicant to Dr Kumar by a 23 February 2024 referral, which referred to the applicant as having “a work injury claim after been [sic] bullied and harassed at work” - a similar referral letter was sent by the doctor to Roshanak Vahdani on 26 February 2024.
The applicant has otherwise put in evidence (attached to both the ARD and the applicant’s ALAD) a significant amount of documentation regarding his medical treatment costs. Considering the agreement between the parties referred to at paragraph 11 above, I do not need to review this documentation in detail.

Respondent’s submissions

The respondent’s submissions were recorded and form part of the Commission’s record. I will not detail them in full.
The respondent commences by submitting that to argue that the shock of the accident was a cause of the applicant’s injury is not supported by the medical evidence. The respondent refers to the comments of the applicant’s treating psychologist (Roshanak Vahdani) in his
20 March 2024 treatment request, as well as the opinion of Dr Young. It also refers to the applicant’s ability to continue to work for it after the accident, his lack of reporting of psychological symptoms from the accident itself to it, and his lack of treatment until 14 February 2024. It submits that the accident itself did not “feature as a causative event” until after the applicant’s disciplinary process had taken place. To consider the accident as a causative event “in retrospect” is not supported by the contemporaneous medical evidence and is contraindicated by the applicant’s continued capacity for work following the accident.
The respondent also refers to the response that the applicant sent to Timms on
8 February 2024 as not directly raising any psychological condition of his which resulted from the accident itself, despite then having the opportunity to do so.
In relation to the reasonableness of the applicant’s disciplinary process, the respondent confusingly at one stage conceded that the accident was not the fault of the applicant, but later withdrew this concession. It argued however that whether the applicant had “done anything wrong doesn’t matter at all”. The introduction of an investigation into the accident was reasonable due to public safety issues in that there was a collision between a pedestrian and a bus. It then argued that each of the steps in the investigation that followed were reasonable.
The respondent refers me to Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) and submits that as Timms believed (after viewing the video footage) that the applicant was driving dangerously at the time of the accident, it was objectively reasonable for the respondent to take the actions that it did, based upon the facts known to it at the time, rather than facts “known objectively in retrospect”. To this submission, I observed that the facts known to the respondent at the time (as depicted in the video footage) were the same as the facts known now. No further facts had been discovered.
The respondent finalises by submitting that its actions in relation to the applicant between
5 February 2024 and 13 February 2024 all form part of its investigation into the accident. The actions need to be “looked at as a whole”. They should be found to be reasonable actions taken in response to an incident involving public safety and the potential injury to a member of the public at the hands of a bus driver.

Applicant’s submissions

The applicant’s submissions were recorded and form part of the Commission’s record. I will not detail them in full.
The applicant commences by conceding that a “proper” investigation into the accident by the respondent was warranted, an investigation however that was not cursory and did not misrepresent objective facts. Instead, the respondent’s first step in the investigation was to issue a Show Cause Notice to the applicant. The respondent’s policies and practices in relation to such investigations (and whether a Show Cause Notice was warranted) were not in evidence before me.
The applicant addresses the video footage, and submits:
(a)    the pedestrian clearly strikes the bus with his right hand, rather than the bus striking him;
(b)    eight seconds after the accident, the applicant stops the bus and picks up his phone to call the OCC;
(c)    after the accident, the pedestrian is seen to act in a manner that was “not normal” - the bus had at least five passengers on it and the applicant had a duty of care to those passengers not to open the doors of the bus to the pedestrian;
(d)    the bus was stationary for two minutes after it stopped following the accident – the accident therefore cannot be described as a ‘hit-and-run’, and
(e)    in all, the applicant spent eight minutes on his phone in contact or attempted contact with the OCC.
The applicant then criticises the statement evidence of Chen, as he says that he reviewed the video footage, but he incorrectly refers to:
(a)    the bus turning left after the accident;
(b)    the bus stopping because the bus in front of it stopped, and
(c)    the applicant only contacting the OCC after the pedestrian came back to the front of the bus again.
The applicant also criticises the statement evidence of Timms as:
(a)    he incorrectly refers to the bus turning at traffic lights;
(b)    he incorrectly refers to the bus stopping after the turn, and
(c)    he does not attach any transcript of the applicant’s conversation with the OCC – despite referring to it in his statement evidence.
The viewing of the video footage by Chen and Timms was therefore cursory at best, and yet it was the “sum total of the investigation” before the applicant was issued with a Show Cause Notice as to why his employment with the respondent should not be terminated. There is no evidence before me as to how the respondent’s disciplinary and investigation policies and procedures were followed in this regard.
The applicant submits that a more detailed viewing of the video footage was required by the respondent’s representatives, and that in any case, an informal conversation with him should have occurred before any Show Cause Notice was issued.
The applicant further submits:
(a)    the letter that he sent to Timms on 8 February 2024 (rather than the email that his union representative sent that evening) explained the accident consistently with what is shown in the video footage;
(b)    his explanation in that letter regarding his contact with the OCC is uncontradicted evidence - as the transcript of his conversation in this regard is not in evidence;
(c)    the letter provided to him during the 13 February 2024 meeting continued to provide an incorrect recitation of what is shown on the video footage;
(d)    the respondent has not put in evidence the “NSW road rules” or its policies and procedures and code of conduct alleged to have been breached by him - it has also not even specifically explained which rules, policies, procedures, or code is alleged to have been breached, and
(e)    it cannot be reasonable for him to be asked to sign the letter that was provided to him during the 13 February 2024 meeting without it being properly interpreted to him.
In summary, the applicant alleges that he was the subject of a very cursory investigation that involved an incorrect viewing of the video footage and nothing else. On this basis, he was provided with the Show Cause Notice. He provided a letter in response stating that he did “the right thing to project his passengers”, but the respondent then advised him that he was lucky not to be terminated and issued him with a final warning. On all objective bases, this whole procedure was not reasonable, and the outcome of the procedure was definitely not reasonable.
The applicant finally submits that his disciplinary process was not the whole or predominant cause of his psychological injury, referring to the accident itself as a cause. He relies upon the opinion of Dr Kumagaya as well as the opinion expressed by his general practitioner. He relies upon his statement evidence, showing that clear psychological symptomology commenced after the accident, and as a result of the accident. He may not have immediately sought medical treatment in this regard, but he submits that he only delayed for a period of two weeks.
He submits that the respondent has not met its onus of proving that its actions with regard to his disciplinary process were the whole or predominant cause of his psychological injury. He says that I would not be persuaded in this regard in accordance with Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), and that “if I can’t find one way or another, it can’t be the whole or predominant factor”.

Respondent’s submissions in reply

These submissions were also recorded and form part of the Commission’s record. I will not detail them in full.
I initially questioned the respondent in relation to its failure to produce its policies, its procedures, its code of conduct, the NSW road rules relied upon in its letters to the applicant, and its transcript of the applicant’s relevant conversation with the OCC on the date of the accident. The respondent submitted that I did not need that information in order to find that its actions were reasonable. The applicant had been provided with procedural fairness and he “knew the case he was required to meet”.
I then questioned the respondent in relation to whether the issuing to the applicant of the Show Cause Notice was a “heavy-handed” response by the respondent at the time. The respondent submitted otherwise because at the time of the accident, a “member of the public’s life was at stake”. The respondent submitted that it was open for Chen and Timms to view the video footage and interpret it as a member of the public having been hit by a bus and knocked to the ground. That interpretation required a solid investigation.

FINDINGS AND REASONS

Can the respondent establish that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by it with respect to performance appraisal or dismissal or discipline

Section 11A of the 1987 Act reads as follows:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent bears the onus of proof in establishing its defence under s 11A of the 1987 Act: Pirie v Franklins Limited [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.

In Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465 (Doyle), Fitzgerald JA said at [4]:
“Before this Court, it was not disputed that Mr Doyle's employment was a substantial cause of his psychological injury. That being so, the Compensation Court was required to decide whether (i) the whole or predominant cause of Mr Doyle's psychological injury was the appellant's action with respect to Mr Doyle's transfer from one position to another, and, (ii) if so, whether the appellant's action with respect to Mr Doyle's transfer was reasonable.”
The respondent’s defence to the applicant’s claim is that the actions that it took regarding its investigation into the accident and the applicant’s subsequent disciplinary process (the respondent’s actions) were the whole or predominant cause of his psychological injury, and that those actions were reasonable. They were actions taken by it with respect to performance appraisal, discipline and/or dismissal.
My interpretation of the reasoning in Doyle is that I need to determine the first issue raised by Fitzgerald JA before determining the reasonableness of the respondent’s actions. I believe that this interpretation is consistent with the decision of Wood DP in Insurance Australia Group Services Pty Limited v Outram [2019] NSWWCCPD 44 (Outram). For the reasons that follow, I will be determining the first issue raised by Fitzgerald JA in favour of the applicant, but I also will then determine the reasonableness of the respondent’s actions in any case.
In relation to whether the whole cause of the applicant’s psychological injury was the respondent’s actions, I am satisfied that the accident itself was also causative of the injury. This is the opinion of Dr Kumagaya (see paragraph 56 above), and the doctor has obtained a reasonably detailed history from the applicant regarding the effect of the accident itself upon his psyche (see paragraphs 52 and 56 above), which is consistent with the applicant’s statement evidence (see paragraphs 49-50 above). Further, Dr Roshandel (while not really expressing his opinion with clarity) seems to implicate the accident itself as causative when taking a history that the applicant’s psychological symptoms commenced “after the index incident at work”, both in his 11 September 2024 report (see paragraph 61 above) and in his initial recording in his clinical notes (see paragraph 66(a) above).
I also consider that the incident involving the applicant when the bus that he was driving was overtaken by a car which swiped the right side of the bus (which occurred on
2 February 2024 according to the applicant, but on 10 February 2024 according to Chen and Timms), was a minor causative factor in the applicant’s psychological injury. In his statement evidence, the applicant refers to his stress and shaking at the time (see paragraph 38 above), and Dr Kumagaya also takes a history that this incident heightened the applicant’s psychological distress (see paragraph 53 above). The doctor specifically opines that the incident was causative as it aggravated the applicant’s depressive and anxious symptoms and reinforced his depressive and anxious cognitions (see paragraph 56 above).
In relation to whether the predominant cause of the applicant’s psychological injury was the respondent’s actions, in Ponnan v George Weston Foods Limited [2007] NSWWCCPD 92, Handley ADP considered the phrase ‘predominantly caused’ and interpreted it according to its dictionary meaning of ‘mainly or principally caused’. That interpretation has been approved on multiple occasions since: see Temelkov v Kemblawarra Portugese Sports and Social Club Limited [2008] NSWWCCPD 96 and Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
In Outram, Wood DP said at [172]:
“The fact that there were other incidents that contributed to the injury is not sufficient to negate the possibility that certain actions, described by the Arbitrator as having made a ‘major’ contribution to the injury, could not be the predominant cause. Whether an action is a predominant cause must be ascertained by weighing the evidence of the effect of each of those incidents on the respondent’s psyche and the consequences that flowed from the incident. In many cases, medical evidence in respect of causation is required. As observed by Candy ADP in ISS Property Services Pty Ltd v Milovanovic, what is required is a comparison between all of the employment related contributions to the injury and those contributions that resulted from reasonable actions by the employer in respect of discipline, transfer, or other actions specified in s 11A(1).”
A comparison is therefore required between the effect of the respondent’s actions upon the applicant’s psyche and the effect upon that psyche of the other work events that I have found occurred and were causative (as referred to at paragraphs 93-94 above - being the accident itself, as well as the incident that occurred on either 2 February 2024 or 10 February 2024).
As discussed with the parties during their oral submissions, I have found this comparison to be difficult due to the different opinions expressed by Drs Young and Kumagaya, as well as the opinion of Dr Roshandel not being as clear as it could be.
The applicant’s statement evidence however makes it clear that he considers that his psychological symptoms commenced after the accident itself and before the respondent’s actions. Indeed, his claim form (see paragraph 50 above) only mentions the accident itself, rather than the respondent’s actions. He also refers to:
(a)    being scared at the time of the accident and advising Timms as such - see paragraphs 37 and 39 above;
(b)    experiencing stress and shaking at the time of the incident on either 2 February 2024 or 10 February 2024 - see paragraph 38 above;
(c)    being terrified and afraid for his life at the time of the accident - see paragraph 44(d) above;
(d)    being concerned for his safety and the safety of the passengers on his bus at the time of the accident – see paragraph 48(a) above;
(e)    being overwhelmed with fear, and being unable to sleep or eat following the accident – see paragraph 49 above, and
(f)    experiencing flashbacks and nightmares about the accident itself – see paragraph 46 above.
The applicant however also states that (see paragraph 41 above) the “primary source of distress for me” was the respondent’s actions, especially the falsity of the accusations made against him. In context however it seems to me that the applicant’s view is that the accident itself commenced his psychological symptoms, which then increased and led to his need for treatment following the respondent’s actions. He uses the plural form to describe his stress “caused by these events” when explaining why he initially consulted with his general practitioner (see paragraph 44(d) above).
I accept the applicant’s evidence regarding the development of his psychological symptoms following the accident itself. I do not believe that his credit has been affected by the respondent’s submissions. In this regard, the respondent has submitted that if the applicant was experiencing such symptoms, he would have sought medical treatment, reported the symptoms to the respondent, and potentially taken time off work. As however the period between the development of the symptoms and the obtaining of medical treatment (and the subsequent ceasing of work) was only around two weeks, I do not consider this to be an unreasonable period, so as to cast some doubt upon the credit of the applicant. I accept the applicant’s submission at paragraph 83 above in this regard.
Further, the history provided by the applicant in his statement evidence regarding the commencement of his symptoms is entirely consistent with the history obtained by
Dr Kumagaya. On the basis of this history, the doctor provided a detailed opinion regarding the applicant’s injury not being wholly or predominantly caused by the respondent’s actions (see paragraph 56 above).
The respondent relies upon the report of Dr Young, but in my opinion, the history of the applicant’s psychological symptoms obtained by the doctor following the accident itself, is not as detailed as the history obtained by Dr Kumagaya. The doctor only notes a degree of anxiety and distraction in this regard (see paragraph 29 above), rather than sleeping and eating difficulties and the other symptoms referred to in the applicant’s statement evidence and by Dr Kumagaya. The doctor also makes no more than a cursory mention of the incident which occurred on either 2 February 2024 or 10 February 2024.
Dr Young’s opinion therefore (see paragraph 31 above) that the applicant’s injury was wholly or predominantly caused by the respondent’s actions is based in my view upon a substandard recording of the applicant’s symptoms. I do not find the opinion to be as reliable as Dr Kumagaya’s in this regard.
The respondent also relies upon the recordings in a treatment request completed by Roshanak Vahdani (the applicant’s treating psychologist) on 20 March 2024. These recordings do not refer to the accident itself, but rather the respondent’s actions, as leading to the applicant feeling devastated, betrayed, and distressed (see paragraphs 63-64 above).
Unfortunately however, there is no further evidence from the psychologist before me, neither his clinical notes nor any report. It is difficult therefore to place his treatment request in context. It is also impossible to know the full history provided to the psychologist by the applicant, or what the psychologist’s opinion would have been had he been specifically asked whether the respondent’s actions wholly or predominantly caused the applicant’s psychological injury.
The recordings in the treatment request are highly relevant, but in my opinion, they are limited, such that they do not affect the weight that I have given to the considered opinion of Dr Kumagaya.
I also do not find the evidence from the applicant’s treating general practitioner
(Dr Roshandel) that is before me to be particularly clear as to whether the respondent’s actions were the whole or predominant cause of the applicant’s psychological injury. There is no specific opinion in this regard before me, but:
(a)    in the doctor’s 11 September 2024 report (see paragraph 58 above), he notes (which is consistent with the applicant’s statement evidence) that the accident itself caused the applicant to be extremely scared and afraid for his life;
(b)    in the doctor’s 11 September 2024 report (see paragraph 59 above), he notes that the applicant only stopped working after he was told by the respondent that the accident was his fault;
(c)    in the doctor’s 11 September 2024 report (see paragraph 61 above), he seems to indicate that the accident itself (“the index incident at work”) “started” the applicant’s major depression - he also uses the plural form to opine that “work place events was main factor to cause his depression”;
(d)    in the certificates of capacity issued by the doctor (see paragraph 65 above), he states bullying and harassment to be the cause of the applicant’s psychological injury, and
(e)    in the doctor’s clinical notes (see paragraph 66(a) above), he records (during the applicant’s initial consultation with him regarding his psychological injury) both the accident itself and the respondent’s actions, without differentiating between them.
Overall, I do not believe that the evidence before me from Dr Roshandel assists the respondent with its onus to show that the whole or predominant cause of the applicant’s psychological injury was the respondent’s actions. The evidence is simply not clear enough in this regard.
For the respondent to succeed with its onus, in accordance with Nguyen, I have to feel actual persuasion that the applicant’s psychological injury was wholly or predominantly caused by the respondent’s actions. In Nguyen, McDougall SCJ (with whom McColl JA and Bell JA agreed) referenced an article by Hodgson SCJ and stated (at [51-52]):
“In the later article, Hodgson J suggested that the two approaches could be combined. He did so in a way that, I think, is consistent with what I have said above as to Malec. He said at 732 that ‘if, on the basis of adequate material concerning circumstances of a particular case, the tribunal [of fact] believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.
In my view, that is the approach that should be adopted in the resolution of disputed questions of fact. It is something of particular significance where a resolution of the disputed question depends upon the drawing of inferences from entirely circumstantial evidence. It also accommodates the requirement that attention be paid to the seriousness of the fact in issue, or the consequences of finding that it has occurred.”
Roche DP discussed Nguyen in Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca) (at [104-105]):
“A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).”
Having reviewed the evidence, compared causative factors in accordance with Outram, and determined Dr Kumagaya’s opinion to be the most reliable, I feel no actual sense of persuasion that the respondent has met its onus in proving that the applicant’s psychological injury was wholly or predominantly caused by the respondent’s actions. I accept the applicant’s submissions at paragraphs 83-84 in this regard. The respondent has failed to establish its defence pursuant to s 11A of the 1987 Act.

Can the respondent establish the reasonableness of the actions taken or proposed to be taken by it with respect to performance appraisal or dismissal or discipline

As indicated at paragraph 92 above, I intend to determine this issue also, considering the extensive submissions made by the parties in relation to it. I believe it to be appropriate for me to do so, notwithstanding that I have already determined that the respondent’s defence pursuant to s 11A of the 1987 Act has failed.
Burke CCJ first considered the essence of reasonableness in relation to s 11A of the 1987 Act in Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454 (Melder), in which he questioned (at [458]):
“The problem is what is it that must be reasonable? The action or the way in which it is done or both? And in what frame of reference does one assess the reasonableness of the action? Is it from the subjective perspective of the employer? From the subjective perspective of the worker? Or subjectively reasonable vis-a-vis both? Or is it an objective evaluation of the relevant facts? If so, what are the relevant facts?”
In Buxton v Bi-Lo Pty Ltd [1998] NSWCC 13 (Buxton), Walker CCJ referred to Melder when he stated (at [85-87]):
“As Judge Burke points out, the test of reasonableness in s11A is a very slippery concept indeed. Many questions are raised by Judge Burke. Is the test objective or subjective? Is that objectivity or subjectivity to be determined from the perspective of the employer or the employee or the man on the Clapham Omnibus? Does the test of reasonableness apply to the whole of the transaction between employer and employee or should it be narrowly confined to the final act in what could be a lengthy chain of events?
Strouds Judicial Dictionary notes that the word ‘reasonable’ has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor called on to act reasonably knows or ought to know: Re a Solicitor [1945] KB 368 at 371.
In the Australian context the word ‘reasonable’ is frequently declared to mean ‘reasonable in all the circumstances of the case’ Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110 at 116.”
Walker CCJ further answers his questions (at [92-94]):
“I agree with the argument of his Honour Judge Burke in Melder's case that it is the action referred to in s11A(1) that is relevant not the whole history of the relationship. I also agree that what went before and after it may well be a guide to its reasonableness but is not part of it.
It may well be argued that the long established principle of interpreting the Act in favour of the worker could well apply to interpret reasonableness from the worker's perspective.
However, s11A can hardly be said to be beneficial in its intent. On the contrary it is a privative provision clearly aimed at limiting workers' rights.”
Finally (at [97]), Walker CCJ asks the question – “What would a reasonable observer think about all this?” in order to determine reasonableness.
The objective nature of the reasonableness test was also confirmed by Armitage CCJ in Ritchie v Department of Community Services (1998) 16 NSWCCR 727 (Ritchie), in which his Honour approved and adopted the reasonableness test set out (admittedly in the context of a different statute) by Bowen FCCJ and Gummow FCJ in Secretary of the Department of Foreign Affairs and Trade v Styles & Anor (1989) 23 FCR 251:
“The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience…The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.”
Armitage CCJ then stated in Ritchie (at [746]):
“it is apparent that the test in this case is an objective one, where one must weigh the consequences of the respondent’s conduct against the reasons given for it, and I have done so. It follows of course from the objective nature of the test that evidence given by the applicant as to the perceived unreasonableness of the respondent’s conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
Consistent with these decisions, it has been held that reasonableness is not established on the basis that an employer complied with its own protocols unless the protocols are objectively reasonable - see Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139 and Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65.
The Court of Appeal considered reasonableness within the context of s 11A of the 1987 Act in Heggie. The relevant observations of Sackville AJA include:
(a)    actions with respect to discipline usually involve a series of steps – a broad approach is to be taken, and it is the entirety of the conduct or process with respect to discipline, including the course of an investigation, that needs to be considered;
(b)    the reasonableness test is objective;
(c)    (at [59]) – “It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline”;
(d)    (at [59]) – “Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action [emphasis in original] that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury”;
(e)    (at [59]) – “The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances”;
(f)    reasonableness is to be determined according to what was known by the employer at the time of its action, or what could have been ascertained by it through reasonably diligent inquiries or the exercise of reasonable care - many actions with respect to discipline are necessarily taken without an employer having the opportunity to establish the full facts, and (at [63]) a “test that assesses reasonableness by reference to facts that could not have been known at the time the critical step is taken invites an extensive factual inquiry potentially far removed from the fairness or integrity of the actual decision-making process”, and
(g)    evidence of events that post-date the relevant action can however be material to the question of reasonableness if that evidence sheds light on the facts known to the employer or the facts reasonably ascertainable by it at the time the action was taken.

The respondent’s actions in investigating the accident and disciplining the applicant were driven by Chen and Timms. According to their statement evidence, they based the respondent’s actions upon their viewing of the video footage. Timms also mentions that he heard the transcript of the applicant’s conversations with the OCC, but as that transcript is not in evidence before me, it is impossible for me to determine whether any of the respondent’s actions based upon his hearing of the transcript were objectively reasonable, in circumstances where the respondent has the onus of proving as such.
The question is therefore what actions were objectively reasonable having regard to what is depicted in the video footage.
I have already made findings (see paragraph 14 above) regarding what I consider is depicted in the video footage. As a result of my viewing of the video footage, I make the following further findings, which I consider to be objectively based:
(a)    at the time of the accident, the bus that the applicant was driving did not strike the pedestrian – rather, the pedestrian struck the bus and then attempted to hold on to a corner of the bus;
(b)    the pedestrian was therefore responsible for the accident – the applicant was not at fault;
(c)    the behaviour of the pedestrian following the accident was erratic and concerning – he did not appear to be injured – in those circumstances, it was reasonable for the applicant not to engage with him – the applicant’s personal safety and the safety of the passengers on his bus would otherwise have been at risk, and
(d)    the accident was not a ‘hit-and-run’ accident – within 13 seconds of the accident occurring, the applicant had brought his bus to a stop and was attempting to report the accident to the OCC - he continued to be on his radio in this regard (even while driving) for almost 8 minutes.
Chen and Timms considered the video footage differently to me, but their subjective opinions as to what the video footage depicted do not make their actions objectively reasonable – see Heggie (paragraph 121(c) above).
Their statement evidence also troubles me considering the almost identical language used at places in their respective statements (see paragraphs 26-27 above). There is no evidence of collusion, and I note that the statements followed their respective consultations with the same investigator (Jason Glynn). However, the inference that I draw is that the statements were prepared by the investigator and then adopted by them when they signed the statements, but in a manner similar to being asked to agree to a leading question in examination-in-chief. This inference does to a degree affect the weight that I give to the statements.
The weight that I give to the statements is also affected by:
(a)    the clear inaccuracies recorded in both statements regarding their viewing of the video footage - I accept the applicant’s submissions at paragraphs 77-78 in this regard;
(b)    Timms’ statement (see paragraph 23 above) that the pedestrian hit his head at the time of the accident – which is not depicted in the video footage;
(c)    the failure in both statements to be specific regarding the particular NSW road rules, and the particular policies, procedures, or code of conduct, alleged to have been breached by the applicant - see paragraphs 21 and 27 above;
(d)    the failure by Timms to produce a transcript of the applicant’s conversations with the OCC after the accident;
(e)    Chen being unable to ascertain if the bus collided with the pedestrian, and being unaware if the applicant called the OCC several times (see paragraph 18 above) – which suggests that he did not review the video footage thoroughly;
(f)    Chen being unable to ascertain if the bus collided with the pedestrian in his statement evidence, but then inconsistently referring to the bus hitting the pedestrian in his ‘Advice of Disciplinary Interview’ (see paragraph 34(b) above);
(g)    both Chen and Timms referring to the applicant as having the assistance of an interpreter during the 13 February 2024 meeting – despite the fact that they did not formally arrange a qualified or accredited interpreter - I accept the applicant’s evidence that a qualified or accredited interpreter was not present during the meeting, but only a friend of his (see paragraph 44(c) above), and
(h)    the different recollections between Chen and Timms regarding what the applicant was told if he did not sign the letter that he was provided with at the 13 February 2024 meeting - see paragraphs 20(e) and 26(c) in this regard.
I accept the respondent’s submission (see paragraph 71 above) that it was required to investigate the accident having regard to public safety issues. However, I also accept the applicant’s submission (see paragraph 75 above) that the investigation was cursory and misrepresented aspects of the video footage.
Considering the serious step that the respondent decided to take in issuing the applicant with a Show Cause Notice, it was not reasonable for Chen and Timms to review the video footage in a limited manner, such that they recorded inaccuracies. The respondent refers (see paragraph 87 above) to the accident as requiring a “solid” investigation, but I do not consider its investigation to have been solid or thorough. I consider that a solid or thorough investigation would have found the objective findings which I have made regarding the video footage.
In those circumstances, I find the issuing of the Show Cause Notice (see paragraph 33(a) above) to the applicant during the 7 February 2024 meeting to be unreasonable, having regard to how the accident occurred as depicted in the video footage. The unreasonableness of the notice in the circumstances is amplified by the fact that the notice puts the applicant’s employment at risk (the most serious of employment penalties). It is also amplified by the fact that the notice alleges breaches of the NSW road rules, and the respondent’s policies, procedures, or code of conduct, but is not specific in providing particulars. It is further amplified as the notice incorrectly in my opinion refers to the accident as a ‘hit-and-run’; and as the notice incorrectly in my opinion suggests that the accident had put the pedestrian’s “life in danger” when any reasonable viewing of the video footage would have shown that after the accident the pedestrian was probably not significantly injured – certainly his life was not in danger.
The applicant himself (rather than his union representative) replies to the Show Cause Notice by letter on 8 February 2024 (see paragraph 33(b) above). The points raised in that letter are entirely consistent with what I have found is depicted in the video footage. There is no evidence however that either Chen or Timms reviewed the video footage again. Considering that the applicant’s employment was at risk, it was objectively unreasonable in my opinion for them not to have done so.
Instead, Chen and Timms decide to issue the applicant with a final written warning letter (see paragraph 33(d) above). Similar to the Show Cause Notice, the letter also alleges breaches of the NSW road rules, and the respondent’s policies, procedures, or code of conduct, but is not specific in providing particulars; and the letter also contains inaccuracies (apparent from a detailed viewing of the video footage) regarding the applicant driving into the pedestrian, continuing to drive after the accident, and only stopping his bus when another bus in front of him blocked its path.
The applicant then signs a Record of Disciplinary Action confirming the final written warning given to him (see paragraph 33(e) above). There is disagreement in the evidence between him and Chen and Timms regarding the degree to which he was coerced to sign this document. However, considering the nature of the document and its potential to seriously affect the applicant’s employment with the respondent in the future, in my opinion an accredited interpreter should have been provided to the applicant by the respondent before the document was signed, especially having regard to Chen’s view (see paragraph 16 above) that the applicant was only able to communicate “moderately” in English.
In summary, I find a litany of unreasonable steps taken by the respondent in relation to the applicant between the date of the accident and the 13 February 2024 meeting. I do not find the respondent’s actions in this regard to be in any way objectively reasonable, in accordance with Heggie. In my opinion, a reasonable observer (the man on the Clapham Omnibus referred to by Walker CCJ in Buxton) would not think the respondent’s actions to be reasonable.

SUMMARY

I find that as a result of the applicant’s involvement in a motor vehicle accident on
29 January 2024, as well as the respondent’s processes and actions from that date with regard to its investigation into the accident and its subsequent disciplining of the applicant, the applicant has sustained an injury (deemed to have occurred on 14 February 2024) pursuant to s 4 of the 1987 Act, being a psychological injury.
I find that the respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal or dismissal or discipline.
Pursuant to the respondent’s concession (see paragraph 9 above), I find that the applicant has been incapacitated for work as a result of the psychological injury since
14 February 2024. He has had no current work capacity since then. He has not received weekly benefits compensation since 19 May 2024.
Pursuant to the parties’ agreement (see paragraph 11(b) above), I find the applicant’s unadjusted PIAWE to be $1,947.23. This amount is adjusted, when relevant indexing is applied, to $1,980 from 1 April 2024, and to $2,020 from 1 October 2024.
Pursuant to the parties’ agreement (see paragraph 11(a) above), I find that the applicant is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent.
There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 19 May 2024 to 30 September 2024, at the rate of $1,584 per week.
There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 1 October 2024 to date and on a continuing basis, at the rate of $1,616 per week.
The parties are given liberty to apply to the Commission on or prior to 28 March 2025 regarding the correctness of the calculations referred to in paragraphs 138, 140, and 141 above.
There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

[2025] NSWPIC 80

10 March 2025