Makdessi v Millennium Security Specialist Services Pty Ltd - [2025] NSWPICPD 3

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Makdessi v Millennium Security Specialist Services Pty Ltd [2025] NSWPICPD 3
APPELLANT:	George Makdessi
RESPONDENT:	Millennium Security Specialist Services Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-W9195/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	20 January 2025
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 27 February 2024 is revoked. 2. I determine that the respondent’s defence under s 11A of the Workers Compensation Act 1987 fails. 3. The matter is remitted for determination by an alternative Member of the Commission in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – section 11A of the Workers Compensation Act 1987 – reasonableness of action of the employer following instruction from third party shopping centre – whether there was a proper basis for the Member determining the reasonableness of the employer’s action in suspending the worker in response to the demand of the third party – Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Malouf, counsel
Law Partners Personal Injury Lawyers
Respondent:
Mr F Doak, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Makdessi v Millennium Security Specialist Services Pty Ltd [2024] NSWPIC 88
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	27 February 2024

INTRODUCTION

This is an appeal from a Certificate of Determination dated 27 February 2024.
The Commission made an award for the respondent.
The appeal, comprising 18 grounds, seeks to have the Certificate of Determination revoked and in its place an award for the appellant for weekly benefits as claimed.
For the reasons that follow, the appeal is allowed and the Certificate of Determination dated 27 February 2024 is revoked.
The defence under s 11A is re-determined by me. The appellant’s psychological injury was not caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer or discipline.
The matter is remitted to a different non-presidential Member for determination consistent with these reasons.

BACKGROUND

The appellant was employed by Millennium Security Services Pty Limited (Millennium), the respondent, as a security guard at the Stockland Shopping Centre Merrylands.
There was a robbery at the shopping centre. At the direction of Stockland, Millennium suspended the appellant and his fellow employee, Mr Dimian, pending investigation of the events. The investigation exonerated the appellant. However, Stockland gave a further direction that the appellant was not to be re-employed at the Merrylands premises. The appellant alleged psychological injury on 18 February 2023. The respondent conceded injury.
The issues before the Personal Injury Commission (Commission) were:
(a) whether Millennium had made out its defence under s 11A of the Workers Compensation Act 1987 (the 1987 Act), and, if not,
(b) the period for which Mr Makdessi was incapacitated for work.
The Member determined the first issue against the appellant and did not make any determination on the issue of incapacity.

THE MEMBER’S REASONS FOR…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2025] NSWPICPD 3
Decision Date: 20 January 2025

CaseChat Overview and Summary

The case of Makdessi v Millennium Security Specialist Services Pty Ltd involved a dispute between the employee, Makdessi, and the employer, Millennium Security Specialist Services Pty Ltd. The matter concerned the reasonableness of the employer's action in suspending Makdessi following a demand by a third party, a shopping centre, to terminate his employment. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether there was a proper basis for the Member of the Industrial Commission to determine the reasonableness of the employer's action in suspending Makdessi in response to the demand from the third party. The court examined the relevant statutory provisions, particularly section 11A of the Workers Compensation Act 1987, and considered the case of Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 to guide its analysis.

The court found that the Member had erred in not considering the proper legal framework for determining the reasonableness of the employer's actions. It was established that the Member should have assessed the reasonableness of the employer's response to the third party's demand based on the statutory provisions and the circumstances of the case. The court held that the Member had failed to adequately consider the factors relevant to the reasonableness of the employer's actions and did not properly apply the legal principles in the case of Jeffery v Lintipal Pty Ltd. Consequently, the court found that the Member's decision was in error and remitted the matter back to the Industrial Commission for reconsideration in light of the proper legal principles.

The court's decision underscores the importance of correctly applying statutory provisions and relevant case law in determining the reasonableness of an employer's actions in response to demands from third parties. The case highlights the need for Members of the Industrial Commission to carefully consider the legal framework and the specific circumstances of each case when making such determinations. The final orders of the court were to remit the matter to the Industrial Commission for reconsideration in accordance with the court's findings.

Orders