Kilzi v Transdev John Holland Buses (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kilzi v Transdev John Holland Buses (NSW) Pty Ltd [2025] NSWPIC 355
APPLICANT:	Georges Kilzi
RESPONDENT:	Transdev John Holland Buses (NSW) Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	28 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation for psychological injury; section 11A defence (discipline) considered; expert medical opinion as to causal test considered; Held – award for applicant for weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not discharged its onus in respect of the defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). 2. Award for the applicant in respect of the defence raised by the respondent pursuant to s 11A of the 1987 Act. 3. I find that that applicant had and has no current capacity for work from 3 April 2024 and thereafter. 4. Respondent to pay the applicant weekly compensation: (a) pursuant to s 36(1) of the 1987 Act, from 3 April 2024 to 2 July 2024, at the rate of $642.20 per week, and (b) pursuant to s 37(1) of the 1987 Act, from 3 July 2024 to 2 April 2025, at the rate of $540.80 per week, and as indexed at the relevant dates. 5. General order as to medical and 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

Georges Kilzi, the applicant, was employed by Transdev John Holland Buses (NSW) Pty Ltd, the respondent, as a bus driver.
On 3 April 2024, the applicant was involved in an interaction with an abusive passenger. Thereafter, the respondent investigated a complaint in relation to the applicant, interviewed him, and informed the applicant that he would receive a written warning.
The applicant claims weekly compensation and medical and related expenses. The respondent relies upon a defence pursuant to s 11A of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing of this matter, the applicant was represented by Mr Hanrahan of counsel, and the respondent by Mr Doak. Directions were issued as to written submissions, and thereafter as to further written submissions. Both parties provided written submissions.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Applications for leave to admit documents dated 10 March 2025 and 1 April 2025.

Oral evidence

There was no oral evidence.

Statements

The applicant provided statements dated 11 July 2024 and 29 October 2024.
In his statement dated 11 July 2024, the applicant said that he had worked for 38 years as a bus driver, firstly with the State Transit Authority and then from about 2022 with the respondent when they took over from the previous entity.
The applicant said that on 3 April 2024 he was in the course of his employment as a bus driver and was driving the route 370 bus. He said that a passenger started to verbally abuse him after the applicant had made comment about an international matter of concern to him and he had requested one minute silence on the bus in memory of a deceased Australian person. The applicant stated that after this incident he was quite upset and he remained too upset to talk to anyone about it and it played over in his mind that night. He said the next day that he felt “so sad” when he commenced work.
The applicant then recounted a meeting that he had with his supervisors the next day on
4 April 2024. He described the meeting in some detail. He said that as supervisor had received a customer complaint which they were investigating. The applicant stated that he was asked what had happened. He said that he was told that he should not have made such a statement in the course of his duties, and the applicant described his feeling that he had done nothing wrong. He described a subsequent meeting immediately after the first meeting that day in which he discussed similar issues with his supervisor.
The applicant described a further meeting on 5 April 2024 with his supervisors in which he was provided with a warning letter, which he declined to sign in acknowledgement. The applicant said that he left the office after further discussions and he went home feeling very upset and depressed over the weekend.
The applicant stated that he consulted with his psychologist, Ms Hazim on 9 April 2024 and he told her that he was very sad, distressed and depressed. The applicant stated that she issued him with a medical certificate for one month off work.
In his statement dated 29 October 2024, the applicant said that the way his employer had handled the lowercase customer complaint against him had been extremely distressing and he felt abandoned and lost his trust in his employer.
The applicant said that he was quite upset after being abused by the customer on the bus on 3 April 2024. He stated that he was worried that the customer was going to attack him and he was very abusive. The applicant also further recounted the details of his meetings with management in which his explanation was not accepted.
Mr Rick Sciarrone provided a statement dated 9 July 2024. He said that his current position was Depot Service Delivery Manager, a position he had held for about two years since the respondent took over from STA, where he had been an employee for 34 years.
He stated that he became aware that a written complaint had been received in early 2024 in respect of the applicant.
He stated that he attended a meeting with the applicant and Mr Sunny Jun, acting depot manager. He stated that he outlined the nature of the complaint to the applicant and gave him the opportunity to provide his account of that incident. He stated that based on what the applicant had said he did not believe that the applicant had any bad intention but that his actions and comments had resulted in a member of the public on the bus to feel that he needed to exit the bus. He noted that a discussion followed at the front door of the bus and it had become a little aggressive between the applicant and the member of the public.
Mr Sciarrone stated that once the applicant had given his version of the event, Mr Sciarrone had informed him that he was not in a position to make this type of request and certainly not to stop the bus and hold a minute’s silence. He said that he explained the nature of the applicant’s duties and responsibilities to him. He noted that the applicant said that he felt that he had done nothing wrong. He said that following the meeting with the applicant he asked Mr June to write and serve a letter of allegation on the applicant. He said that following review of the CCTV footage of the incident there was sufficient evidence to substantiate the complaint against the applicant for a breach of the Code of Conduct.
Mr Sunny Jun provided a statement dated 9 July 2024. He stated that his current position was Depo Supervisor and he had been an employer of the respondent since 2022 when they took over from the State Transit Authority.
He stated that on a day he could not recall he was informed that a formal customer complaint had been received in respect of the applicant and he was asked to bring the applicant in for a meeting with Mr Sciarrone and himself to advise the applicant that his actions were inappropriate and did not align with the Code of Conduct and company policy. He stated that the applicant was advised that he would be receiving disciplinary action in relation to his actions. He stated that following this initial meeting he was instructed that there was sufficient evidence to substantiate the complaint and to write a formal warning letter to the applicant.
He stated that on 5 April 2024 he had a further meeting with the applicant for the purpose of issuing the formal warning letter. Mr Jun said that the applicant was adamant that he had done nothing wrong and did not deserve the warning. He said that he called in Mr Stojanoski to sit in on the meeting and the applicant was issued with the formal warning letter, which the applicant declined to sign.
Mr Misho Stojanoski provided a statement dated 8 July 2024. He said that he was the Regional Service Delivery Manager for the respondent. He recounted the investigation process and stated that it was decided that the applicant’s behaviour on the evidence did not meet the minimum customer service standards. He stated that the outcome of the investigation was that the applicant was to be issued a first formal warning, which was a low level warning. He recounted his attendance at the meeting with the applicant and Mr Jun on
[BG1] 5 April 2024.

Clinical records and medical certificates

In a clinical note dated 4 April 2024, Dr El-Jaam, referred to in the applicant’s statements as his doctor and his general practitioner, recorded the following history:
“he is very emotional and upset, he was told off by his supervisor and manager seperately over an issue that took place at work while driving, he feels he was humiliated by the way of questioning him and giving orders and some sort of disrespect over something he beleives did not do anything wrong Psych: Low self esteem. Depressed mood. No irrational fears. No compulsive behaviours. No panic attacks.”
In a clinical note dated 9 April 2024, Ms Hazim, psychologist, recorded the following history:
“… He presented with an anxious and frustrated mood and affect. He advised that he has been working with Transdev Bus Company since 2018 – 3 days/week… he advised on 3.4.2024 that experienced verbal abuse from one of passengers following Georges requesting other (all) passengers for a 1 minute silence…Time was spent recapping his symptoms… He was advised to no longer to speak with passengers while driving a bus only to greet them and as such he feels being “unfairly treated” by his team leader. Medical certificate was provided.”
Medical certificates and certificates of capacity were also provided. These will be dealt with below.

CCTV/video footage

In evidence was CCTV or video footage of the incident on 3 April 2024. I have reviewed and considered that footage. There was no dispute as to the identity of the voices of the two persons on that footage, that is that one was the applicant, and the other was relevantly the (unidentified as to name but not as to role) male passenger.
In my view, that footage did show in general terms what was recounted by the applicant. There was a heated exchange between the applicant and the passenger. The applicant and the passenger both spoke with somewhat raised voices. This was described as a confrontation by the respondent. Mr Sciarrone, who had reviewed the CCTV footage described the discussion at the door of the bus between the applicant and the member of the public as “a little aggressive”. A/Prof Davies described this as an interaction with an “abusive passenger”.
I agree with these descriptions.

Dr El-Jaam

In a report dated 13 September 2024, Dr El-Jaam noted initial consultation on 4 April 2024 for work related stress initially, and for post-traumatic stress disorder on subsequent consultations. He was at the opinion that the applicant’s employment was a substantial contributing factor to the aggravation of a previous post-traumatic stress disorder condition in 2015.

Ms Hazim

In a report dated 12 April 2024 to Dr El-Jaam, Ms Hazim noted employment with the respondent as a bus driver three days per week. She stated that “his current symptoms appear to be related to an incident on 03/04/2024 involving a passenger who allegedly became verbally abusive towards George”. She recommended psychological counselling sessions focusing on education on anxiety, depression and stress as well as other strategies.

A/Prof Davies

A/Prof Davies, consultant in general and forensic psychiatry and clinical Associate Professor, provided reports to the workers compensation insurer and its solicitors dated 26 July 2024 and 9 October 2024 respectively.
In his report dated 26 July 2024, A/Prof Davies recorded a history that was generally in accordance with the applicant’s statement. In particular, A/Prof Davies recorded that the passenger on the bus on 3 April 2024 had become abusive over about 15 minutes and the applicant said that he had become frightened because of the look in the man’s eyes. He noted that the applicant said that he had remained upset for the rest of the day and had not talked to anyone.
A/Prof Davies recorded the subsequent meeting the next day between the applicant and his supervisors where it had been alleged that he had made political comments and that this was not allowed and the applicant said that he had defended himself saying that he had not made any political statement and had only expressed sympathy for the death that he had noted on the bus. He said that his manager had told him that he should make no commentary at all. A/Prof Davies recorded the further meeting the following day in which he was given a written warning but the applicant refused to accept it as he believed that he had not done anything wrong. A/Prof Davies recorded that applicant said that he felt stressed and upset and he had a headache and that he had gone home and then consulted his doctor and his psychologist.
A/Prof Davies was of the opinion that it was difficult to be precise about whether the applicant had a formal psychiatric disorder but the most appropriate diagnosis was an adjustment disorder as the applicant manifest marked distress out of proportion to the intensity of the stressor and had significant impairment in functioning.
In response to a question as to whether employment was a substantial or main contributing factor to psychological injury, A/Prof Davies stated that “the primary stressor/action which was the predominate cause of his emotional reaction was the interaction with the abusive passenger on the bus and this was complicated by the actions of his employer.” He stated that the main contributing factor in the applicant’s presentation was the traumatising interaction which occurred in the workplace.
A/Prof Davies was of the opinion that the applicant was fit to return to his pre-injury duties if the workplace issues can be resolved. He further opined in this regard that the applicant was fit for duties as a bus driver.
In response to a question as to whether a psychological or psychiatric disorder was wholly or predominantly caused by the employer’s actions in respect of matters including discipline, A/Prof Davies stated that “this is a difficult question because essentially Mr Kilzi has been accused of making an inappropriate political statement in the workplace and by his account this was not his intention”.
He was of the opinion that the relief of the applicant’s adjustment disorder will depend on a resolution of the issue by mediation.
In his report dated 9 October 2024, A/Prof Davies reviewed the statements noted above as well as various medical certificates and certificates of capacity, among other documents.
In response to a question as to whether the applicant suffers from a psychological injury, A/Prof Davies stated:
“As discussed in my earlier report, making a psychiatric diagnosis in Mr Kilzi's case is complicated. He manifested symptoms of stress secondary to both the abuse that he had received from the passenger on the bus and the subsequent disciplinary action and these would make a diagnosis of an Adjustment Disorder appropriate. The subsequent problem for Mr Kilzi is that he has essentially taken a moral position to the assessment of his actions as political, as he is a religious man, and he has acted on his belief in the appropriateness of 'remembrance for self sacrificing people'. Because of this he had been unable to have an acceptance of his employers' view of his behaviour. This moral dilemma is a matter of choice and cannot be construed as a psychiatric illness.
Given that a diagnosis of Adjustment Disorder is meant to only reflect an acute and short-lived reaction to stress I am of the opinion that this diagnosis would no longer be appropriate and at this point the documentation of any other symptoms is insufficient to meet the criteria for a current psychiatric diagnosis.”
In response to a question as to whether the predominant cause of injury was action taken by the employer with respect to discipline, A/Prof Davies stated:
“My opinion from the information reviewed and from my interview with Mr Kilzi is that Mr Kilzi had developed symptoms in the context of the confrontation with the passenger on the bus but that the major ongoing issue had been the disciplinary process at work; particularly his anger about being accused of having acted politically.”
In response to a further question as to his opinion on the predominant cause of injury having regard to the statement evidence, A/Prof Davies stated that:
“The statements provided by all parties are congruent and do not provide corroborated evidence of a formal mental illness apart from Mr Kilzi's refutation of the accusation that he acted politically and his distress at not being able to return to work without accepting the formal warning.”
A/Prof Davies was of the opinion that the applicant would be able to return to work as a bus driver in a supportive environment.
In response to a question as to whether medical treatment was required as a result of work injury, A/Prof Davies stated that “the treatment was required because of the incidents which occurred at work, including the incident with the passenger and in relation to the disciplinary action.”

Reasons

There was no dispute that the applicant has sustained a psychological injury as a result of his employment with the respondent. A/Prof Davies diagnosed an adjustment disorder. He had regard to medical certificates provided by Dr El-Jaam and Ms Hazim that were available to him.
Dr El-Jaam provided a diagnosis of “PTSD”, which I infer is a reference to post-traumatic stress disorder. Dr El-Jaam did not appear to make a specific comment as to reasons in his report of 13 September 2024. There was no reference before me of a specific diagnosis by Ms Hazim, and her report and certificates referred to psychological symptoms and sequelae.
I prefer the opinion of A/Prof Davies as to diagnosis. He provided reasons for his diagnosis, in contrast to Dr El-Jaam and Ms Hazim, whose reports and certificates were for treatment and not for forensic purposes. His qualifications are also persuasive as to diagnosis.
I find that the applicant sustained an adjustment disorder as a result of psychological injury sustained in the course of his employment with the respondent.
On my reading of the reports as a whole of A/Prof Davies, he was of the opinion that this psychological injury was sustained as a result of both the incident on the bus on 3 April 2024, and the subsequent actions taken by the employer on 4 and 5 April 2024. I will deal with this aspect further below. A/Prof Davies also did not disagree that employment with the respondent was a substantial or main contributing factor to his psychological injury. I find that the applicant’s employment with the respondent was the main contributing factor to his injury.[BG2]
There was no submission that the s 11A defence extended to the incident on the bus on
3 April 2024.

The respondent relied upon a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken by the employer in respect of discipline[BG3] .
In relation to the question of causation, that is whether the applicant’s psychological injury was wholly or predominantly caused by the reasonable actions of the employer in respect of discipline, it was submitted by the respondent that a finding in favour of the respondent was supported by the opinion of A/Prof Davies and the clinical record of Dr El-Jaam.
It was submitted that the second report of A/Prof Davies stated that while the applicant would have experienced some stress symptoms due to the earlier incident, the major cause of any psychological condition suffered by the applicant was the disciplinary action taken by the respondent.
It was submitted that this view of causation was supported by the clinical record of Dr El-Jaam at the consultation on 4 April 2024 which was a contemporaneous record identifying the cause of the applicant’s complaints as the meeting with his supervisor and manager. It was submitted that the applicant’s statement that the incident on 3 April 2024 was the cause of his psychological condition should be rejected. It was submitted that there was no medical evidence before me challenging the opinion of A/Prof Davies on causation.
I do not accept the respondent’s submissions.
First, in my view, reading his reports as a whole, A/Prof Davies did provide an opinion that the applicant sustained psychological injury on 3 April 2024. A/Prof Davies took a history that the applicant was first abused by a passenger. In my view, the CCTV footage supports this proposition. It is not relevant whether or not that confrontation was instigated by the applicant, as suggested by the respondent. In his first report A/Prof Davies was of the view that the primary stressor or action which was the predominant cause of the emotional reaction was the interaction with the abusive passenger on the bus, complicated by the actions of the employer.
In his second report, A/Prof Davies was of the opinion that the applicant manifested symptoms of stress secondary to both the abuse that he had received from the passenger on the bus and the subsequent disciplinary action, making a diagnosis of an adjustment disorder appropriate. He was of the view that the applicant had developed symptoms in the context of the confrontation with the passenger on the bus. This of course is sufficient for a finding of injury. This is further placed in context and supported by the opinion of A/Prof Davies that medical treatment was required because of the incident which occurred at work including the incident with the passenger and in relation to the discipline reaction.
Second, in my view there was other medical evidence to support a finding of injury on
3 April 2024. The clinical record and report of Ms Hazim, dated 9 April 2024 and
12 April 2024 respectively, both referred to and describe psychological symptoms arising from the incident on the bus on 3 April 2024, namely anxiety, depression and stress.
In my view, these documents support the applicant’s case that has sustained psychological symptoms and injury as a result of the incident on 3 April 2024. This is not inconsistent, in my view, with the history of symptoms recorded by Dr El-Jaam on 4 April 2024 and with the opinion of A/Prof Davies.
The applicant’s description of both the incident on 3 April 2024 and the subsequent disciplinary action was lengthy, and the absence of a description of the incident on
3 April 2024 by Dr El-Jaam is in my view not determinative. The history recorded by
[1] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].
Ms Hazim was taken shortly afterwards. Busy doctors, such as Dr El-Jaam may misunderstand or mis-record such histories.[1]
Third, and in any event, A/Prof Davies did not address the correct test of causation in this matter. He stated that the disciplinary process at work was “the major ongoing issue”. He did not address the test required by s 11A, that is whether the disciplinary process wholly or predominantly caused the applicant’s psychological injury. The respondent relied upon the contention that the disciplinary action predominantly caused the applicant’s psychological injury.
“The major ongoing issue” posited by A/Prof Davies is in my view not the predominant cause, it is something less, or it is at least vague as to the extent of the requirement of predominant cause. The meaning to be ascribed to the word “predominantly” in s 11A(1) is “mainly or principally caused”.[2]
[2] Temelkov v Kemblawarra Portugese Sports and Social Club Ltd [2008] NSWWCCPD 96; Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 at [30-31].
In any event, in his report of 26 July 2024, A/Prof Davies was of the view that it was the interaction with the abusive passenger on the bus that was [BG4] “the primary stressor/action which was the predominate cause of his emotional reaction”.
This in my view ensures that the view of A/Prof Davies of “the major ongoing issue”, as expressed in has later report, is insufficient for the respondent to establish action taken by the employer wholly or predominantly causing the applicant’s injury.
The respondent carries the onus of establishing the defence pursuant to s 11A.[3] In my view the respondent has not discharged its onus. I find that the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the employer in respect of discipline.
[3] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346.
It is not necessary to deal with the other matters raised in submissions in relation to s 11A.
The respondent did not make submissions as to capacity other than not accepting that the applicant had any incapacity for employment in the claimed period.
Although I have not preferred the diagnosis of post-traumatic stress disorder contained within the certificates of Dr El-Jaam, and the certificates of Ms Hazim, which refer only to “psychological symptoms”, the certificates are evidence of a qualified medical and psychological practitioner opinion as to capacity for work.
A/Prof Davies in his report of 26 July 2024 was equivocal as to capacity, saying only that the applicant was fit for pre-injury duties “if the workplace issues can be resolved”. In his report of 9 October 2024, A/Prof Davies was of the opinion that an adjustment disorder reflects an acute and short lived reaction to stress and at that time the documentation of other symptoms, including the medical certificates of Dr El-Jaam and Ms Hazim, were insufficient to meet the criteria for a current psychiatric illness.
However, the opinion of A/Prof Davies of 9 October 2024 was not the result of further examination of the applicant, as it was expressed as being based entirely upon review of documents available. In my view, the certificates of Dr El-Jaam and Ms Hazim carry weight, as they are based on examination of the applicant on a periodic basis. Those documents certify the applicant as having no capacity for work until 11 March 2025 due to his continuing psychological symptoms resulting from his injury at work with the respondent.
There was no evidence to rebut the applicant’s evidence that his symptoms continue. He said that his mental health has been severely impacted and he has significant emotional distress.[4] In my view he is entitled to the benefit of the presumption that the effects of the work injury continue.[5] I accept the applicant’s submissions in this regard. I find that the applicant has had no capacity for work since 5 April 2024, as it was his evidence that he stopped work on that date, as a result of his psychological injury sustained in the course of his employment with the respondent.
[4] ARD paragraphs 34 -35.
[5] Bree v IR Doyle & PA Doyle t/as Ian Doyle's Meat Service [2009] NSWWCCPD 25 at [144 -147].
The applicant was 70 years of age at the time of injury on 3, 4 and 5 April 2024. It seems to me that s 52(2)(b) of the 1987 Act is applicable, to the effect that weekly payments are payable for a period of 12 months after the first occasion of incapacity resulting from the injury.
In further written submissions it was not disputed that the period of the weekly compensation claim ended on 3 April 2025.
Pre-injury average weekly earnings were agreed at $676. Indexation is to apply.

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[2025] NSWPIC 355

28 July 2025