Makdessi v Millennium Security Specialist Services Pty Ltd - [2024] NSWPIC 88

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Makdessi v Millennium Security Specialist Services Pty Ltd [2024] NSWPIC 88
APPLICANT:	George Makdessi
RESPONDENT:	Millennium Specialist Security Services Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	27 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; compensation for accepted psychological injury to a security guard stood down after a security breach at a shopping mall; section 11A defence; discipline; Northern NSW Local Health Network v Heggie and Department of Education and Training v Sinclair referred to; relevance of request of shopping centre owner; Jeffery v Lintipal Pty Ltd referred to; Held – award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

George Makdessi was employed by Millennium Security Services Pty Ltd (Millennium) as a security guard at a shopping centre operated by Stockland at Merrylands. After a security breach in the shopping centre, Millennium stood Mr Makdessi down pending an investigation, saying that it was required to do so by Stockland. Mr Makdessi pleaded in his Application to Resolve a Dispute (ARD) that he suffered a psychological injury on 18 February 2023 as a result of the accusation and the “demonisation he underwent.”
Millennium agreed that Mr Makdessi suffered a psychological injury on 18 February 2023 but said that it was caused by reasonable action it took with respect to discipline and/or transfer within the meaning of s 11A of the Workers Compensation Act 1987 (the 1987 Act).
The claim is for weekly compensation only and the parties agree that the following issues remain in dispute:
(a) whether Millennium had made out its defence under s 11A of the 1987 Act, and, if not,
(b) the period for which Mr Makdessi was incapacitated for work.
The focus of the s 11A dispute is whether Millennium’s conduct was reasonable.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The claim was listed for conciliation conference and arbitration hearing on 22 February 2024 when Mr Malouf of counsel appeared for Mr Makdessi, instructed by Mr Malai, and Mr Doak of counsel appeared for Millennium, instructed by Ms Tancred.
The parties agreed that Mr Makdessi’s pre-injury average weekly earnings were $1,534.42.
I am satisfied that the parties understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours to attempt to bring them to a settlement acceptable to all of them. I am satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply.
Mr Makdessi pleaded the injury in the following way:
“The Applicant was employed as a security officer for the Respondent and was based at Stockland Mall, Merrylands NSW. The Applicant was accused of being complicit in a robbery offence in the mall. The Applicant was suspended…

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: [2024] NSWPIC 88
Decision Date: 27 February 2024

CaseChat Overview and Summary

The case before the court involved a security guard, Mr. Makdessi, who had suffered a psychological injury after being stood down from his position at a shopping mall following a security breach. He sought compensation under the Workers Compensation Act 1987, which was contested by his employer, Millennium Security Specialist Services Pty Ltd. The employer argued that the section 11A defence applied, which exempts employers from liability for injuries caused by their actions in good faith, such as disciplinary measures. The court was required to decide whether the employer's actions in standing down Mr. Makdessi amounted to a disciplinary measure that could trigger the section 11A defence.

The court considered the nature of the employer's actions and the relevance of the request from the shopping centre owner. It examined precedents such as Northern NSW Local Health Network v Heggie and Department of Education and Training v Sinclair, which dealt with similar issues of discipline and the section 11A defence. The court also looked at the case of Jeffery v Lintipal Pty Ltd, which highlighted the importance of the employer's intentions and the proportionality of the response to the alleged breach. Ultimately, the court found that the employer's actions did not amount to a disciplinary measure in good faith, and thus the section 11A defence did not apply.

As a result, the court ruled in favour of Mr. Makdessi, awarding him compensation for his psychological injury. The court determined that the employer's actions were not proportionate to the incident and were more akin to a response to the breach rather than a disciplinary measure. The employer was held liable for the compensation claim under the Workers Compensation Act 1987. The court's decision was based on the specific circumstances of the case and the employer's lack of a genuine disciplinary intent.

Orders