Makdessi v Millennium Security Specialist Services Pty Ltd

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 with pay while an investigation was conducted without fair due process/opportunity to respond.
While the employer had exonerated him (without a formal apology of acknowledgement of harm), the Applicant continued to be ostracised by the subject employer with the Applicant being deemed ‘a risk’ on site/premises.
As a result of the accusations and demonisation he underwent, the Applicant sustained psychological injury.”

Mr Makdessi

Mr Makdessi provided a statement to an investigator instructed by Millennium’s insurer on 6 June 2023. He said that he had commenced work in November or December 2022 as a security guard based at Stockland Merrylands. He said:
“I first started experiencing stress due to work on 18th of February 2023. This happened because I was advised that I was being stood down Majed Homsi contacted Nabil Dimian via telephone and advised him that both Nabil and I were being stood down.
At the time we were locking up the top level of the shopping centre so we had to wait until all the shops closed before locking up. Once we did this we walked back to the Office. Majed and Mikhail Fajloun were both in the office. Nabil and I asked Mikhail what was going on. Mikhail told us not to stress, we haven’t lost our jobs. He then told us to pretend this was a holiday with pay. He told us that one of the Operations Managers Walid Farhat has logged into his computer and didn’t log out and someone has logged in to the computer under his name and tampered with the CCTV cameras. Whoever it was had logged in 3 or 4 times.”
Mr Makdessi said he worked until 10.30pm and did not return to work after that. He said that no one from Millennium contacted him for about two weeks so he and Mr Nabil together called Joshua Swain who told the men that they still had jobs and he would get back to them as soon as possible. Mr Makdessi said he received an email about 10 days later saying that “we were to be removed offsite effective immediately as we were deemed a risk.” Mr Swain then telephoned Mr Makdessi and told him he had been stood down, that Millennium had to respect the client’s wishes though it had tried to fight for them but had not been successful.
Mr Makdessi said that he was originally accused the tampering with the cameras on two days until Millennium realised he had not been at work on the second day. Mr Swain then apologised.
About “10 days after the incident” Mr Makdessi spoke to Mikhail Fajloun who said that he could do some training for cyber security at Erskine Park. He said that Mr Fajloun smirked as he made the offer and Mr Makdessi said “feel like he already knew that we were being stood down and that's why he offered me the training for another role”. He said that he spoke to Mr Fajloun about four weeks later about his annual leave and Mr Fajloun hung up on him.
Mr Makdessi signed another statement on 12 September 2023. He confirmed his earlier statement with respect to the events of 18 February 2023 though on this occasion he said that Mr Homsi contacted “me and my colleague” and notified them they were being stood down. He said that he was “completely shocked” by the accusations. By 20 February 2023 Mr Makdessi had “notable symptoms” due to stress which led to him fainting and his father took him to the doctor, who agreed that the symptoms he described were consistent with being stood down from his job.
Mr Makdessi said that he suffered mood swings and his relationship with his girlfriend ended. He tried sleeping tablets which did not help and in mid 2023 consulted a psychologist, Mr Alameddine. Mr Makdessi said he needed approval from Millennium’s insurer to see Mr Alameddine again. At the time he signed his statement, his treatment was fortnightly consultations with his general practitioner.
Mr Makdessi disagreed with the insurer’s s 78 notice. He said that the idea of returning to work was overwhelming. He said that when he went to the shops, he was asked on about seven occasions if he was the security guard who was involved in the robbery, which was disheartening and made him feel more stressed.

Mr Dimian

Nabil Dimian provide a statement on 29 November 2023. He said that he was working with Mr Makdessi on about 17 February when he received a message from their supervisor, Majed, that they would be stood down for a week with pay. He said that the news affected Mr Makdessi almost instantly. Mr Dimian said that Mr Homsi explained that the men were being investigated for a break in because they had been on shift and in the security room when the camera footage had been tampered with. He said that Mr Makdessi was surprised that he had been stood down without a fair chance to provide his side of the story, and affected by the fact that he was informed through Mr Dimian. Mr Dimian said that he and Mr Makdessi were kept in the dark for weeks for the investigation was taking place.
Mr Dimian said that he and Mr Makdessi were in a car together when Mr Dimian rang Mr Swain on 1 March. Mr Swain sad that the results of the investigation would be known by Friday and on 4 March, Mr Swain told Mr Dimian that he had been stood down despite being cleared. Mr Dimian said that from his recollection, Mr Makdessi was never offered a chance to have a proper meeting with the employer.

Mr Makdessi’s medical evidence

Mr Makdessi’s general practitioner’s notes reveal that he consulted Dr Latif on Monday 20 February 2023. Dr Latif wrote:
“problem at work accused by his employer that he deleted camera footage and accused him of help in steeling the shop
stressed anxious and not sleeping
suspended and not getting incom at the moment
angry intolerant having chest pain” [sic]
Dr Latif did not have a history that Ms Makdessi’s father had accompanied him nor that Mr Makdessi had fainted. He prescribed Diazepam.
On 6 March Dr Latif recorded:
“very depressed and anxious
employer terminated him and offer him another job faraway in lane cove
feels he was unfairly treated
not sleeping well very irritated mood fighting with his fmaily
feeling down and wrongly done by
…
referral to psychologist after having claim no” [sic]
On that occasion Dr Latif provided a certificate of capacity. It is the only certificate of capacity in the file. The cause of the injury is said to be unfair dismissal due to a false allegation and referral to a psychologist was proposed. Mr Makdessi was certified as having no current work capacity from 18 February until 18 March.
Dr Latif’s notes do not support Mr Makdessi’s evidence about fortnightly consultations as treatment for his injury. Mr Makdessi saw Dr Singanamala on 24 and 26 May for blood collection and results which showed high cholesterol. A care plan was created with respect to diabetes. Mr Makdessi wanted to see a dietician and a referral was made.
On 22 June Dr Latif said that Mr Makdessi was still upset, anxious and angry and was seeing a psychologist, Mr Alameddine. A Centrelink medical certificate was provided. On 15 August Dr Singanamala created a mental health care plan and provided a referral to Mr Alameddine.
On 18 September Mr Makdessi saw Dr Latif in respect of episodes of chest tightness and Dr Latif ordered blood tests, noting a family history of high cholesterol. There was no reference to psychological symptoms. On 20 September Dr Singanamala provided the results of the tests and diagnosed plantar fasciitis. The doctor noted that Mr Makdessi was still grieving about what happened at work and provided counselling. On 5 October 2023 Dr Latif prescribed Circadin and “weight reducing agents prescription.” He prepared a generic medical certificate which read:
“Suffering from chronic adjustment disorder in relation to a work related incident on 18/02/2023. He received counseling and commenced on anxiolytic medication. he was referred for psychological counseling and therapy on 23/08/2023 under a mental health care plan .He is still showing stress and anxiety symptoms with sepressed mood . He was advised to continue psychological counseling and take regular anxiolytic medication to help him relax and overcome his insomnia.” [sic]
On 18 October 2023 Dr Latif provided a Centrelink report. There were no further consultations before the notes were printed on 16 November 2023.
Mr Alameddine, psychologist, prepared a report dated 26 October 2023 in which he said that Mr Makdessi was referred to him on 15 August 2023. He recorded that on 17 February 2023, Mr Makdessi’s employer verbally, unfairly suspended him from his duties. Mr Alameddine sent out a history of the events following that day, and said that following an investigation, “he was unfairly removed from his current role and was offered a different role at another location – Millennium’s Data Centre in Erskine Park.” Mr Alameddine set out Mr Makdessi’s current symptoms as a result of his psychological injury, and also, that since being stood down, he had been experiencing financial stress.
Mr Alameddine diagnosed adjustment disorder with mixed anxiety and depressed mood in the context of work related stress. He noted that Mr Makdessi was receiving cognitive behavioural therapy and recommended that treatment continue. He recommended referral to a psychiatrist. He said that Mr Makdessi was currently unfit to return to work, and then, when deemed fit to work, he will need to consider a graded return subject to addressing his work related psychological issues. Mr Alameddine considered that any improvement was likely to be gradual.
Mr Makdessi’s solicitors referred him to Dr Anand, psychiatrist, who reported on 11 September 2023. Dr Anand had a history of the injury on 18 February 2023 and subsequent events. He recorded that Mr Makdessi had refused an alternate role at Erskine Park because it was a totally different role. Dr Anand said:
“Upon symptom review, he stated that since he has gone off work, he has been experiencing anxiety, depressed mood, poor sleep, anger issues, irritability, mood swings, social withdrawal, disordered appetite, paranoia, and lack of motivation. He said that ‘I am very scared to go back to work and am I going to get accused again if I do go back to work’. He said that he has lost weight and he is also stuttering. His energy levels were described as low, and his concentration was described as being poor. He said his relationship broke down as well because of his mental health issues. He went on to say that his parents are helping him financially and he is currently living with his parents as well.”
Dr Anand diagnosed adjustment disorder with mixed anxiety and depressed mood, which appear to be predominantly caused by the disciplinary action instigated against him. When asked his opinion as to whether Mr Makdessi, does he want to be able to resume his preinjury occupation, Dr Anand said:
“Yes, in my opinion, he has the capacity to resume his pre-accident occupation with an alternate employer.
From a restriction’s perspective, in the initial few months, I have made some suggestions as given below:
·Gradual return to work, starting at three days per week, and increase by 4 hours each week till he returns to his full time hours
·Meetings and assignments to be provided regularly.
·Avenues to allow him to raise concerns and report issues.
·Should have access to Employee Assistance Program or counsellors.
·Placement in a role that utilises his skills and provides him with meaningful work and realistic workload and performance expectations.
·Provision of a psychologically safe workplace including a supportive and encouraging manager that listens and acts on his concerns and provides positive.”

Claim form

Mr Makdessi’s solicitors wrote a letter dated 17 May 2023 lodging a claim form and a medical certificate dated 6 March 2023. The claim form said:
“On the 18/2/2023 I was suspended with pay pending investigation due to misconduct tampering with cctv footage. Since then I have been depressed, stressed, anxiety and hardly sleep due too the stress the put me through.
I was kept in the loop and was not told anything but on Saturday 3/3/2023 I received a call from Joshua Swain stating that I was deemed a risk and Stockland risk committee has told to remove me off site effectively immediately. From that Saturday I have been depressed , my parents have been upset , my gf and I have been having arguments over my well being as I have been soo depressed , none of this has ever happened to me and when they said this my whole world turned upside down . There was no proof, no evidence, no warning, no talking.[sic]”

Millennium’s factual evidence

A s 78 notice dated 14 June declined the claim on the basis that the injury was they are predominantly caused by reasonable action, taken or proposed to be taken with respect to discipline and transfer under s 11A. The decision was confirmed in a review decision dated 19 October 2023. A further notice was issued on 20 October 2023 setting out Millennium’s case in detail. The statements on which Millennium relies were attached to that notice.
An undated letter offering employment to Mr Makdessi appears in the file. It said, among other things, that he would be required to perform duties at Stockland, Merrylands, or any other location, as directed by the company in accordance with operational requirements. The letter highlighted that he was expected to obey all reasonable and lawful instructions, provide the company with prompt and full information when requested, act honestly and in a manner consistent with the engagement and ensure that company equipment is appropriately used, secure and maintained. It informed Mr Makdessi that his employment was subject to a probationary period of six months during which Millennium could terminate his employment with one week’s notice if it was not satisfied for any reason. The offer letter referred to the Millennium code of conduct, and said that Millennium has “the right to suspend you from duties” when “necessary to adequately investigate allegations, or suspicion of misconduct, or impropriety against or involving you.”

Mr Fajloun

Mr Mikhail Fajloun, Millennium’s account manager, provided a statement dated 9 June 2023. He said that about 17 February 2023, Walid Farhat advised him that following investigation into a break and enter at a retailer in the shopping centre, it was discovered that CCTV cameras were “non-operational” at the time of the break-in. Mr Farhat told Mr Fajloun that his credentials had been used by someone other than himself to alter the CCTV recording time. Mr Fajloun went to the shopping centre and:
“I viewed the CCTV cameras in question and could not identify activity between the hour range indicated, which confirmed to me that the cameras were indeed non-operational. I also noticed the cameras in the security room were not operational.”
Mr Fajloun had a meeting with representatives of Stockland. He said:
“During the meeting we were advised that there was footage of the claimant George, other guards Nabil, Fitzy and Majed entering and leaving the office on the dates and during the time range. George Makdessi and Nabil had been in the office when the cameras were altered. George left the office for a period and Nabil was in the office alone.”
Mr Fajloun said:
“I then met with my security team and briefed the team about the clients' allegations of them entering the office at the time Walid's credentials were reportedly used to log into and out of the system. I assured the team that the company and I would ensure a thorough and fair investigation process into what is purely allegations by the client at this stage, and that they would be fully supported by myself, afforded procedural fairness and given a right of response in the matter.”
Mr Farhat then contacted Mr Fajloun and said that Stockland’s head office had asked that “George and the other guard” be stood down pending the investigation. Mr Fajloun had a meeting with Mr Farhat, Mr Swain, the Head of Business and Millennium’s National General Manager, Mr Peirce. Mr Fajloun said:
“After the phone call was concluded I called George and the other guard into the office with Majed as their direct line manager and updated them as to where we were up to in the investigation. I prefaced my conversation with an explanation that Millennium was obliged contractually to adhere to the requests of the client and that policy and procedures underpinned any action taken or proposed to be taken by myself at the request of the client. I then advised them that the client had communicated an instruction that they be stood down with full pay pending the outcome of the investigation. I explained the next steps in the process, including the issuing of an allegation notice, as is prescribed by company policy and that it was simply a formality that needed to be undertaken and was their opportunity for right of response. The guards confirmed understanding of the procedures that were to be followed and commented that they were aware it was company protocol and procedure we had to follow as part of our contract with Stockland. I also told them they could call me at any time if they needed to talk and reminded them of support via the Assure helpline.
On Monday the 20th February I sent the allegation notice out as had been discussed. The notice was issued the next business day rather the same day as I was conscious of the next day being a weekend. Having regard for the guard's welfare, the notice was sent on the Monday and the Assure helpline support outlined which provided counselling services.”

In response to Mr Makdessi’s statement, Mr Fajloun said that there was no suggestion that being stood down was a holiday on pay.
Mr Fajloun sent an email to Mr Makdessi on 18 February 2023, headed “Notice of Stand Down (with pay) pending investigation into alleged misconduct”. The email read:
“Hi George,
Please be advised as of 18.02.23 you have been stood down with pay from Stockland Merrylands pending an investigation relating to a CCTV matter.
You will receive allegations notice via email; you will be provided a reasonable period to formally respond to the allegation put to you.
I have attached Millenniums EAP support program for your support.”
Dealing with Mr Makdessi’s statement that he spoke with Mr Fajloun about 10 days afterwards, Mr Fajloun said that on 24 February, he met with Mr Makdessi and Mr Dimian and offered to place them at another site so that they were active until the matter was resolved. He agreed that training would be required because they were moving from a retail setting to a corporate office. Mr Makdessi declined the offer and Mr Fajloun denied that he had smirked and within the context of the interaction, it made no sense. He said:
“I held genuine regard for these men's welfare, hence the offer of alternate roles whilst their conduct was being investigated. The claimant was within his probationary period and given the nature of the allegations, there was no obligation by myself or the company to source alternate work for the claimant during this time.”
Mr Fajloun denied that he had had a conversation with Mr Makdessi about his annual leave because he was on full pay while stood down and denied that he hung up on Mr Makdessi.

Mr Swain

Mr Swain provided a statement dated 9 June 2023. He is Millennium’s Head of Business AU NZ/Security Services. He said that Mr Makdessi reported to Majed Homsi, the site manager, and Mikhail Fajloun, account manager.
Mr Swain said that Stockland management alleged that Mr Makdessi and another employee had tampered with CCTV system on site, and specifically that Mr Makdessi had altered the operating times of the camera system. Because that was a serious allegation, Millennium was obliged to investigate and investigation was undertaken commencing on 17 February 2023. He said that Mr Makdessi and Mr Dimian were stood down on full pay and formal notice of the allegations was provided on the first available business day of 20 February 2023. After the investigation Millennium was not able to substantiate the allegations and sought that Mr Makdessi return to the site but Stockland’s internal risk committee determined to instruct Millennium to remove Mr Makdessi and the other employee from the site permanently.
In response to Mr Makdessi’s statement that no one from Millennium contacted him before he contacted Mr Swain two weeks later, Mr Swain said that Mr Fajloun remained in regular contact through the process, and that Mr Swain spoke told them that the details of the investigation could not be divulged to them, that they remained stood down with pay, and they had open access to Millennium’s employee assistance program.
Mr Swain said:
“MAKDESSI was not deemed as a risk, nor communicated that in any such way. MAKDESSI was clearly communicated in writing it was the Stockland Risk Committee that made the independent decision for his permanent removal from the site following their internal review of the detail. MAKDESSI is concerned that he is not able to return to the site even though there was no wrongdoing on his part throughout the investigation. Our clear direction to Stockland was that both employees should be returned to the site but ultimately it is their decision as to who works on their properties and as they are our client, with ownership of the property and it is incumbent on Millennium that we honour our contract and their decision to exercise rights under the contract of services where reasonable.”
Mr Swain agreed that he telephoned Mr Makdessi on 4 March 2023, but did not tell him he had been stood down because he was already stood down with full pay before that conversation. Mr Swain said he did not say that the Stockland risk committee had deemed Mr Makdessi a risk.

Correspondence

The original letter dated 20 February 2023 does not appear in the file, though, Mr Makdessi’s response, which Mr Fajloun said was received on 20 February 2023, does. That letter refers to Mr Makdessi in the third person as if it was prepared by somebody other than himself. Mr Makdessi denied accessing the computer on 8 February, and said he was only in the office at the time of his meal break in accordance with a request that employees eat in the office so they are not seen in their uniforms. He left the office and did not return until much later.
Mr Makdessi said:
“On Saturday the 18th of February, operations manager Walid Farhat approached Mr Makdessi in front of the retail store lndustrie at approximately 14:20hrs and was apologetic regarding the accusation towards Mr Makdessi. Mr Farhat also stated to Mr Makdessi ‘I am so sorry that you have to go through this, I know how much of a hard-working guy you are, I am deeply sorry George you don't deserve this. This is just procedure; my ass is on the line too and it is my user name and password that was on the computer.’ Additionally, Mr Walid Farhat appeared to be shaking, as he pulled out his mobile phone and was showing Mr Makdessi the dates and time frame in which this accusation took place. As stated in the Misconduct Management Process - Formal Allegations Notice, ‘the allegations and investigation must remain confidential and cannot be discussed with other Millennium employees.’
I would like to bring to your attention the anxiety, stress, poor sleep and loss of appetite, I have been experiencing due to this false accusation. As attached in the email, on the 20th of February at 17:27 hours, I was rushed to the doctors by my father, as I had fainted, due to high blood pressure. This stressful situation has not only located me in a dark place and affected my physical and mental health, but has also taken a toll on my family and girlfriend. My parents are experiencing severe anxiety and are also finding it difficult to be productive in their daily life, due to the false accusation being made against their son. Additionally, I have been dedicated to this job and as mentioned by my co-workers and other employees, ‘I am a hard and committed worker.’ It disheartens me that I have worked to my full potential and I have been accused of unacceptable performance and behaviour.
I am asking that the accusation be cleared and removed from my records, as I can confirm that I am innocent of this act.”
There are two versions of that letter in the file. Despite the different formatting, I am satisfied that the second is an incomplete copy of the first.
On 6 March 2023 Mr Swain wrote to Mr Makdessi confirming that a Formal Allegations Notice was provided on 20 February 2023. An incomplete copy of the original version is attached to the factual investigation report and includes an allegation of further access to the administrator’s credentials on 9 February 2023.
In response to a communication from Mr Makdessi which does not appear in the file, Mr Swain wrote to him and said:
“Yes, you are correct. On review of the initial allegations I can see you were NOT subject to matters pertaining to 9 February 2023. Accordingly, your letter has been amended with apologies.
On the point of your question below. A clear and formal reference has been made to the contract clause of the binding service agreement between both parties, Section 3.5, and has been applied within the letter.
With respect to your comments regarding Stockland Risk (committee), let me be clear and clarify; in our discussion on Saturday 4 March 2023 I made no such verbal commitment to you in response to your references to the effect ‘removed because you are a risk’ to be included in the letter.
I informed you our clients Risk Committee (Stockland Risk Committee) independently reviewed the matter and their clear decision and direction to Millennium was to remove you from Stockland Merrylands based on their risk assessment.
Given they are a risk committee and engaged to review the commercial risk of activities on Stockland owned and managed properties, I in fact educated you on the role and purpose of that committee and that the decision to remove you was from that committee, this is standard commercial practice.
Millennium is obligated to communicate with you formally, this has been done as evidenced in the letter with reference to applicable clauses.
I trust this clarifies all.”
The corrected version of the letter dated 6 March 2023 said that the allegations of misconduct included that:
“On 8 February 2023, an administrator, Walid Farhat's credentials were accessed, without authorisation, on the CCTV system in the Stockland Merrylands security office between the time period of 17:37 and 17:53 hours. This allegation is supported by camera footage in the corridor leading to the security office depicting you entering the office at the timeframe in question.
On both occasions, changes were made to CCTV recordings via username and password access owned, but not authorised by Walid Farhat.”
The notice said that none of the allegations were reasonably substantiated, and that no disciplinary action will be pursued. It went on:
“On 3 March 2023 Millennium's client (Stockland Property Management Pty Ltd) provided written notice in accordance with Section 3.5 of the Facilities Management Contract between Stockland Property Management Pty Ltd (Principal) and Millennium of their clear instruction to remove you, with immediate effect, from performing Security service activities on behalf of Millennium at the Stockland Merrylands site. Millennium is obligated under the contract of services to comply with the Principals request in this respect.”
The letter informed Mr Makdessi that his suspension on full pay implemented on 18 February would conclude with him returning to work on 7 March 2023 at the Digital Realty (data centre) at Erskine Park.

Millennium’s medical evidence

Millennium’s insurer qualified Dr Young, psychiatrist, who reported on 11 August 2023. Dr Young sort out the history, he obtained from Mr Makdessi, including that, despite the lack of findings against him, the owner of the property had “demanded” he no longer work there. Though he was offered to commence training in a different area, he was distressed, “viewing himself as a victim of false accusations and declined redeployment, because he preferred to return to his normal duties.”
Dr Young recorded that Mr Makdessi was seeing a psychologist regularly, but the treatment had minimal positive impact and said:
“Mr Makdessi presents describing a history of significant psychological distress in relation to accusations of criminal behaviour occurring in the workplace. Mr Makdessi reports that he continues to experience ongoing significant distress in relation to these issues, although given the ongoing grievance he has with his employer and extreme ratings that he has given on the DASS 21, I believe there is significant symptom overreporting currently in this case. Nevertheless, I believe there are sufficient symptoms to meet diagnostic criteria for Adjustment Disorder.
Mr Makdessi is having some psychological supportive treatment, however, it is apparently ineffective, and it was difficult to gauge from Mr Makdessi's description how his treatment complies with accepted treatment guidelines.
Mr Makdessi's current prognosis is guarded due to the ongoing nature of the stressors in this case. His symptoms are likely to improve when the current issues are resolved.”
Dr Young said that:
“The whole and predominant cause of the condition are the accusations that have been made against him and the subsequent suspension and proposed redeployment.”
With respect to Mr Makdessi’s capacity to return to work, Dr Young said:
“I believe that it should be possible in time for Mr Makdessi to return to his pre-injury duties' capacity at a different worksite with a different employer. This would require continuing on appropriate psychological treatment in order to achieve this outcome.
…
The main barriers to regain pre-injury capacity are his current symptoms and lack of resolution of the grievance with his employer.”

SUBMISSIONS

At Mr Malouf’s request, Mr Doak addressed first because Millennium bears the onus of proving its s 11A defence.

Section 11 A – Millennium

Mr Doak said that Millennium relied on actions with respect to discipline and transfer. He said there was no contest on the issue of causation, and that the medical evidence was in agreement that the whole or predominant cause of Mr Makdessi’s injury was disciplinary action and transfer, being the proposed redeployment.
Mr Doak summarised the factual matrix from Mr Fajloun’s statement saying that once Mr Fajloun was notified of the allegations, he did not simply accept them, but approached the client for a meeting. After the meeting, Mr Fajloun met with the security guards. It was his opinion and belief that Millennium was contractually obliged to adhere to the request of the client. Conceding that the contract between Stockland and Millennium was not in evidence, Mr Doak said that I would be aware through common experience that Stockland is a very large owner of commercial, including retail, property and there would obviously be a commercial imperative, apart from any contractual imperative, that Millennium followed Stockland’s requirements. However, he said that Millennium did not sit passively and Mr Fajloun sought further information.
Noting that the formal notice of the allegations dated 20 February 2023 is not in evidence, Mr Doak said that there was evidence of Mr Makdessi’s response to it and that he did not say that the allegations took him by surprise. Mr Makdessi’s evidence as to what happened was consistent with an understanding that the was being stood down on full pay and was consistent with what Mr Fajloun told him would happen. Though there was a mistake in the original notice of the allegations, suggesting that Mr Makdessi was involved on a day he was not at work, the letter was subsequently amended with apologies.
By that time Mr Makdessi had seen Dr Latif on 20 February and Mr Doak said that the records supported a finding that Mr Makdessi had suffered a psychological injury by that time, as a result of the events on 18 February. By that time, Millennium had been told that Stockland said there was a robbery as a result of the alarm being turned off, Mr Fajloun had a meeting with Stockland’s representatives and satisfied himself as the basis on which the allegations were being made. Mr Fajloun had to notified Mr Makdessi and the other guards that Stockland required them to be stood down. Mr Doak said that I would not find that there was anything unreasonable about what was done up until that point, and on his own evidence, Mr Makdessi had already suffered injury.
Mr Doak observed the inconsistency about the next contact between Mr Makdessi and Mr Fajloun – Mr Makdessi said he heard nothing for about 10 days but Mr Fajloun said he spoke to Mr Makdessi on 24 February. Mr Doak said that Mr Makdessi was not correct because the notice of allegations was provided on 20 February and within four days Millennium made an offer of alternative employment while the conduct was being investigated, which required some training. Because Mr Makdessi was in the probationary period, there was no obligation on Millennium to do that and the evidence is that Mr Fajloun acted out of real concern for Mr Makdessi and Mr Dimian. Where there was an inconsistency between the evidence of Mr Makdessi and Mr Fajloun, Mr Doak said I would prefer Mr Fajloun and I would find that the conduct was reasonable.
Turning to Mr Swain’s statement, Mr Doak said that I can be satisfied that notice was given to Mr Makdessi on 20 February of the allegations because of the evidence of Mr Fajloun and Mr Swain and the response made by Mr Makdessi.
Mr Doak pointed out that when Stockland completed the investigation and the allegations were unsubstantiated, Millennium did not discipline Mr Makdessi but intended to take him back to the site. Mr Swain’s reference to “our clear direction to Stockland” was an indication that Millennium pushed back when Stockland said it did not want the men on site but accepted that it was Stockland’s decision. Mr Makdessi was then offered work elsewhere, which he declined.
Mr Doak referred to Irwin v Director-General of Education[1] in which Geraghty CCJ said the question of reasonableness is one of fact, weighing all the relevant factors and that the rights of the employee must be weighed against the objective of the employer. Mr Doak said that Millennium cannot ignore the commercial reality that it is working for Stockland. Mr Makdessi was offered other work but he had already sought medical advice.
[1] Unreported NSWCC 14068/97, 18 June 1998.
The letter dated 6 March 2023 post-dated the onset of Mr Makdessi’s symptoms. Mr Doak said it was therefore irrelevant. However it made clear that the contractual and commercial relationship with Stockland required Millennium to follow Stockland’s instructions. Noting the anticipated submission that the notice to Mr Makdessi was not reasonable because of the error in including conduct on 9 February 2023 when Mr Makdessi was not at work, Mr Doak noted that as soon as Mr Makdessi pointed it out, it was amended and an apology was proffered immediately. Mr Doak did not concede that the reference to 9 February was anything more than an error but he referred to Department of Education and Training v Sinclair[2] (Sinclair) and said it was authority for the proposition that it was necessary to look at the whole process and that the whole process may be reasonable even if parts of the process were not.
[2] [2005] NSWCA 465.
With respect to transfer, Mr Makdessi was offered two positions which he did not take and Mr Doak said there was no evidence to allow me to determine if Mr Makdessi did not want them or was not capable of doing them. Mr Doak said that there is nothing unreasonable and standing a worker down on full pay while an investigation is undertaken, nor is there anything unreasonable in offering other positions while that occurred. Far from acting unreasonably, Millennium had Mr Makdessi’s interests at heart.
Despite the lack of a copy of the contract between Millennium and Stockland, Mr Doak said there was clear evidence that Millennium had a contract, and that it believed it and obligation under that contract to act. Millennium’s belief about that was critical, viewed objectively, particularly in the light of the commercial reality.

Section 11A – Mr Makdessi

Mr Malouf began his submissions by saying that a finding of injury on 20 February 2023, was completely inconsistent with Mr Makdessi’s case and obfuscated the onus on Millennium. He said that the evidence was that Mr Makdessi’s injury was caused by action in respect of discipline and transfer. He said that Millennium cannot leave out the parts of the process which are supported by Dr Young’s evidence.
Mr Malouf said he wished to make three categories of submissions that would more than adequately show that Millennium’s conduct was not reasonable.
First, Mr Malouf referred to Jeffery v Lintipal Pty Ltd[3] and to paragraph [47] of Basten JA’s judgment to say that it was necessary to consider the reasonableness of Stockland’s conduct and that there was no evidence to show why Stockland did anything.
[3] [2008] NSWCA 138.
Second, Mr Malouf said that there was a “gaping chasm” of evidence that Millennium did not lead. He highlighted there was no evidence from Mr Homsi, Millennium’s site manager, or Walid Farhat who were the first two people to make a decision about standing Mr Makdessi down. He said that the contract with Stockland was not in evidence. The “other big one” is that the actual notice dated 20 February 2023 standing Mr Makdessi down is not provided. He noted that an email referred to in Mr Fajloun’s statement was also not provided.

The third category to which Mr Malouf referred was positive evidence of unreasonable conduct. It also had three elements. First, Mr Malouf said that Mr Makdessi found out that he was being stood down on full pay because Mr Homsi rang Mr Dimian so that there was no confidentiality. Mr Dimian informed him that he was being stood down and there is no evidence as to why Mr Makdessi was not told personally, nor was there any evidence as to the policies and protocols that Mr Fajloun said he followed in providing notice. Second, Mr Makdessi asserted that the other security guards in the office on the relevant day were not stood down and there is no evidence why. Third, Mr Malouf said it was entirely unreasonable that for two weeks, Mr Makdessi was accused of something it was impossible for him to have done because allegations were made in respect of 9 February when he was not at work.
Mr Malouf said that the evidence of Mr Fajloun and Mr Swain was inconsistent as to why Mr Makdessi was stood down – Mr Fajloun said that Stockland required it and Mr Swain said that that it was a business requirement.
Describing to other issues which he said were individually and cumulatively fatal, Mr Malouf said that Mr Fajloun said that he did not send the formal notice of allegations on Saturday 18 February but kept it until Monday out of concern for the guards’ welfare. Mr Malouf said that was patently incorrect because notice was given on 18 February and was it was not reasonable because it was far too brief, with no explanation. It could not be reasonable conduct when Mr Fajloun specifically said that he would not send it on a Saturday. Mr Malouf said that Mr Makdessi’s evidence was that he did not receive anything on Monday 20 February and that it was relevant that the letter was not in evidence.
Mr Malouf said that there was no evidence as to what Millennium did to satisfy itself about the allegations made and no evidence from Stockland.
Turning to the issues concerning transfer, Mr Malouf said that there was no evidence from anyone from Stockland to say why the transfer of Mr Makdessi and Mr Dimian away from the centre when they had been cleared of wrongdoing, nor is there written evidence as referred to in the letter dated 6 March 2023. There was nothing to show what cl 3.5 of the contract with Stockland said.
Mr Makdessi was not given an opportunity to respond to the proposed transfer. Conceding that transfer may be possible it certain conditions were met, Mr Malouf also said that there was no evidence that Millennium sought to comply with clause 4.2 of its “policy” with respect to transfer, referring to page 95 of the Reply (part of Millennium’s Code of Conduct), which reads:
“4. Site Allocation or Appointment
4.1. Although you are employed with the view that you will predominately work at the one location subject to operational requirements, client requests and company workload, you may be required to work at alternative sites and locations.
4.2. Millennium will, where possible, consider your residential address and endeavour to place you at an available site closest to your home.”
If Mr Malouf said that Mr Makdessi was offered work at Erskine Park which is 22.8km from his home and there was no evidence if there was anywhere closer and where the millennium considered his residential address because no one says they did.

Section 11A – Millennium in reply

Mr Doak said that Mr Makdessi’s challenge to the s 11A defence rested on picking aspects of the process, with respect to both transfer and discipline and contending that they could be done better or were not done well enough. Mr Doak said that ignored the fundamental requirement in s 11A that the process is reasonable, based on objective assessment. He said that neither Sinclair nor Jeffery supported the submissions made. The predominant cause of the injury was the entirety of the disciplinary process and the course of conduct may still be reasonable, even if particular steps are not.
Mr Doak said the evidence was that Mr Makdessi was aware that he was to be stood down and the reasons for that the reference to 9 February 2023, in the letter dated 6 March 2023, would fall squarely within the type of analysis that Spigelman CJ referred to in Sinclair.
With respect to the lack of evidence from Stockland, Mr Doak submitted that Mr Malouf’s submissions were an overreading of Jeffery and not supported by it, especially where Hodgson JA said:
“The question whether or not the school’s direction itself was reasonable is a factor relevant to the question whether or not the transfer was ‘reasonable action taken … by or on behalf of the employer’; but in my opinion, it would not be essential in this case for the respondent to prove that the direction given by the school was reasonable action taken by the school. ...”
Referring to Basten JA’s judgment,[4] Mr Doak submitted that where the employer takes action on the basis of the concerns of another, the reasonableness of the action may need to take account of two elements – first, whether it is contractually reasonable for the employer to accept an obligation to comply with the direction and whether direction itself is reasonable in the circumstances. There was no suggestion in this case that either the contract or the direction was not reasonable. Mr Doak submitted that Basten JA noted that, in the absence of an improper motive, the officers of the employer made the acting reasonably and compliant with what they believed by the contractual obligations of the employer. In this case, Mr Fajloun and Mr Swain provided evidence in that regard.
[4] At [46]-[47].
Mr Doak said it was clear that Mr Makdessi was not stood down because Millennium thought he was guilty but because Stockland had information that required an investigation to take place. He said that Jeffery does not stand for the proposition that, if there is no evidence that the direction was reasonable, the defence must fail. In this case, Stockland directed certain things, and there is evidence that from a commercial and contractual point of view, Millennium believed it was required follow that direction and there is no evidence that to suggest they were acting on an improper motive.
With respect to transfer, Mr Doak said that Mr Fajloun took steps to try to find Mr Makdessi an alternative position. It is possible that Mr Makdessi may not have been in a position psychologically to accept it, or he may simply have wanted to reject it. The fact is that it was offered, and the fact that it was not accepted, does not make it unreasonable, nor does the fact that it was some distance further away, make it unreasonable. To paraphrase Irwin, Mr Doak said that it was necessary to look at the rights of the employee versus the objectives of the employer and there was a solid basis for a s 11A defence.

Incapacity – Millennium

Mr Doak noted that the evidence from Mr Makdessi’s general practitioner was a medical certificate dated 6 March 2023 and a document dated 5 October 2023 in which Dr Latif did not make any comment about Mr Makdessi’s fitness for work. Mr Doak reviewed the notes of the general practitioners and said that the notes did not support the claim with respect to incapacity.
Mr Doak said that Dr Young considered that Mr Makdessi’s prognosis was guarded due to the ongoing nature of the stressors, and that his symptoms were likely to improve once his current issues had resolved. Dr Young did not consider Mr Makdessi fit to return to pre-injury duties at that stage though he did not say he was not fit to do anything at all. Against that, Dr Anand said that Mr Makdessi would be able to resume his pre-accident occupation with an alternative employer, so that the only restriction was that Mr Makdessi not return to work for Millennium.
Mr Doak said that a gradual return to work would take about a month based on the time frames in Dr Anand’s report, which meant that Mr Makdessi would have been fit to return to work by mid-October 2023.
He noted that Mr Alameddine merely said that Mr Makdessi was currently unfit to return to work, but it was not clear how many times Mr Alameddine had seen Mr Makdessi between 15 August and the date of that report. It was also an enlightening as to the factors taken into account in proffering that opinion, so that it was in effect, a bare ipse dixit, as discussed in South Western Sydney Area Health Service v Edmonds[5] and was insufficient to explain how he reached his opinion. Mr Alameddine also recommended a graded return to work, which meant that his opinion was consistent with that of Dr Anand.
[5] [2007] NSWCA 16.
When I drew Mr Doak’s attention to paragraph 32 of Mr Makdessi’s statement in which he said that he had not seen Dr Alameddine again Mr Doak said that supported his submission, and the conclusion that there was no incapacity beyond the date beyond mid-October based on Dr Anand’s report.

Incapacity – Mr Makdessi

Mr Malouf said that Mr Doak’s submissions did not refer to Mr Makdessi’s own evidence about his inability to work, set out in his statement, which must be taken into account. The symptoms described are serious and his statement about having suicidal thoughts was relevant. Mr Malouf said that no doctor considered that Mr Makdessi had capacity for work beside Dr Anand. Dr Young conceded that Mr Makdessi may have capacity at some indeterminate time in the future, when treatment had been provided, however, Mr Makdessi has not had treatment would be required to assist with the graduated return to work because he cannot afford it and there is no evidence from Millennium as to what suitable duties would be.

FINDINGS AND REASONS

Section 11A(1) provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(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.”
In Northern NSW Local Health Network v Heggie, Sackville AJA said:[6]
[6] [2013] NSWCA 255 at [59].
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. 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.
(v)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 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.
(vi) 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.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (emphasis in original).
Sackville AJA said:[7]
“In my opinion, the better view is that the reasonableness of an employer's action for the purposes of s 11A(1) of the WC Act is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonably diligent inquiries. The statutory language directs attention to whether the psychological injury was caused by reasonable disciplinary action taken or proposed to be taken by the employer. Ordinarily, the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.
…
This does not mean that evidence of events that post-date the relevant action can never be material to the question of reasonableness. Reports prepared or correspondence created after the event may shed light on the facts known to the employer at the time the action was taken or that could have been ascertained had reasonably diligent inquiries been undertaken. But I think it is unlikely that facts or circumstances that were neither known nor ascertainable when the employer took the action could have a material bearing on the reasonableness of that action.”
[7] At [61] and [64].

The chronology

Before applying the law to the facts, it is important that I determine what occurred as there is some disagreement in the evidence. Mr Doak conceded that there are some documents not in evidence which would ideally have been. The factual investigation could have been better prepared by ensuring that all relevant documents were attached but that it not necessarily fatal. Section 42(1) and (2) of the Personal Injury Commission Act 2020 is relevant. It provides:
“43    Procedure before Commission generally
(1)     Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)     The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
…”
Several of Mr Malouf’s submissions elided the evidentiary gaps with the question of reasonableness but care needs to be taken to separate those issues. The failure of the factual investigators to include some documents in the investigation report may mean that there is no corroborative evidence of some facts but the absence of a document does not, of itself, connote unreasonable conduct. There is no statement from either Mr Homsi and Mr Farhat. The body of the investigation report said that they declined to provide statements. No reason was proffered. The only submission made about the omission is that there were no statements, and not that any conclusion should be drawn from that.
I also have regard to the statement of Spigelman CJ, with who the other members of the court agreed in Sinclair where his Honour said:[8]
“Furthermore, the case … primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s9A. His Honour appeared to approach the s11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal’. Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.
His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’.”
[8] At [96]-[97].
Having considered all of the evidence together, including both the statements and the correspondence in the Reply, I find that the factual matrix is as set out below.
On or about 17 February, Mr Farhat told Mr Fajloun that during an investigation into a break-in at one of the shops in the centre, it was discovered that the relevant CCTV cameras were not working. Mr Farhat told Mr Fajloun that his credentials had been used to alter the CCTV recording times, and it was done by someone other than himself. It was suggested the security team may have been involved, so that Mr Fajloun spoke to Mr Swain.
Mr Fajloun went to the shopping centre and confirmed that the cameras were not working. He sought to have a meeting with Stockland and met with the facilities manager, the centre manager and Mr Farhat, the latter attending by videolink. Mr Fajloun was told that Mr Farhat had logged into the computer about the time the cameras were down and remained logged in so that someone else could have had access to the relevant system.
During the meeting Mr Fajloun was told that Mr Makdessi, Mr Dimian and some other guards were in the office at the relevant time and that Mr Makdessi and Mr Dimian were there when the cameras were altered.
Mr Malouf submitted that the lack of information as to what happened to the other guards showed that Millennium’s action was not reasonable, but I do not accept that submission for two reasons. First this case is about Mr Makdessi, so only evidence about Mr Makdessi is relevant. Second, the explanation for any different treatment is contained in the statement that only Mr Makdessi and Mr Dimian were in the security room at about the time when the cameras were altered.
After meeting Mr Fajloun received an email from Stockland, confirming what was discussed. The statement says that the email was attached but it was not. Mr Malouf submitted that this email should have been provided and that it was a “massive omission”. The reference to it in the statement suggests that it should have been attached but its omission is not fatal because there is ample evidence of the reason why the next steps took place.
Mr Fajloun said that he met with “my security team and briefed them about the client’s allegations”. He said that he would ensure a fair investigation. Neither Mr Makdessi nor Mr Dimian gave any evidence about that meeting. They both prepared statements after Millennium’s statements were provided to them and they did not deny that it occurred.
Later that day, Mr Fajloun was told by Mr Farhat that Stockland required that Mr Makdessi and Mr Dimian be stood down. He then had a conversation with Mr Farhat, Mr Swain and Mr Pierce. After that conversation he called Mr Makdessi and Mr Dimian into the office through Mr Homsi.
Mr Makdessi and Mr Dimian were locking up the top level of the shopping centre together when Mr Dimian was contacted by Mr Homsi, their manager. Mr Homsi may well have told them they were being stood down. Whether he said that or not, they then attended a meeting with Mr Fajloun and Mr Homsi. I consider that the purpose of the phone call was to ask Mr Makdessi and Mr Dimian to go to the meeting. When the men were together and the meeting they were both to attend was to take place imminently, I do not consider it unreasonable that only Mr Dimian received a phone call or, given that a meeting had already taken place earlier in the day, that any material breach of confidentiality occurred.

Mr Dimian said nothing about the second meeting in his statement but Mr Makdessi described a conversation with Mr Fajloun at which he was told that the me were told they were to be stood down on full pay. He said that this took place on 17 February and that is consistent with Mr Fajloun’s statement.
On the following day, Mr Makdessi received an email from Mr Fajloun with details of Millennium’s Employee Assistance Program (EAP). He did not receive formal notice of the allegations at that time. Mr Fajloun said the formal notice was not sent until the Monday out of concern for the guards’ welfare. Mr Malouf submitted that the sending of the email on the Saturday was “fatal” because that Mr Fajloun did not comply with his own belief that it was not appropriate. I am not satisfied that is so. The email dated clearly says that the formal notice will be provided. On Friday 17 February, Mr Makdessi knew what the broad allegations were and knew that he had been stood down with full pay. The email provided written confirmation of the standing down and details of the EAP so that he could seek assistance to deal with them.
Mr Makdessi and Mr Dimian say they then heard nothing for some time. Mr Makdessi said he received an email about 10 days later. I do not accept that either of those statements are correct. All of the relevant events took place within 17 days.
Mr Swain said that Mr Makdessi was provided with formal notice of the allegations on 20 February 2023. Mr Swain said that the letter was sent on the first available business day. That is understandable as it was probably drafted or checked by Millennium’s Human Resources department.
Mr Makdessi responded to it. His response is undated and there are two versions of it, one of which is incomplete. Mr Fajloun said he received it before he spoke to Mr Makdessi on 24 February. Mr Makdessi’s evidence is silent about it but, importantly, he did not deny that he sent it nor did he seek to provide a further statement in response to Millennium’s evidence.
The letter was written after Mr Makdessi saw Dr Latif on 20 February because he referred to that consultation. The content of the letter is important in light of Mr Malouf’s submission that Mr Makdessi stood accused for a period of tampering with the cameras on 9 February when he was not in the office on that day. Mr Makdessi said nothing at all about that in his undated letter. He said he was accused of two things – accessing Mr Farhat’s credentials and making changes to the CCTV recordings. For the reason set out below, I am not satisfied the letter dated 20 February made any allegations about 9 February.
Mr Makdessi sought medical attention on 20 February 2023. Dr Latif’s notes describe symptoms of a psychological injury and medication was prescribed. The statement in the notes that Mr Makdessi was not receiving income was incorrect and the fact that he was paid is confirmed by records in the ARD. No medical certificate was provided.
Mr Fajloun said that he met Mr Makdessi and Mr Dimian on 24 February. The meeting took place considerably earlier than “about 10 days” after the events as Mr Makdessi described it. The accounts of the meeting from Mr Fajloun and Mr Makdessi are similar enough to conclude that they refer to the same event. Mr Dimian did not mention it. At the meeting, Mr Fajloun offered work at another site which would require training because it was a different kind of job. Mr Makdessi drew the conclusion that Millennium already knew he had been stood down permanently.
I accept Mr Fajloun’s explanation that the offer was made from a perspective of concern. As he said, Mr Makdessi was still in the probationary period and because of the nature of the allegations there was no obligation to do so. The letter offering employment said that either party could terminate the employment contract on a week’s notice. I accept that the offer of work was made to provide Mr Makdessi with some work to do. Given the investigation and the nature of Stockland’s allegations, Millennium would be unlikely to offer a job in a retail location. Importantly however, Millennium allowed Mr Makdessi to remain on full pay while the investigation was concluded and did not seek to force him to take another role.
Both Mr Fajloun and Mr Swain said that Mr Fajloun was in contact with Mr Makdessi. Mr Swain conceded that he took a call from Mr Makdessi and Mr Dimian, which is consistent with the call on 1 March described by Mr Dimian.
On 4 March Mr Swain rang Mr Makdessi. Their versions of the call are different in emphasis – Mr Makdessi said that Mr Swain rang to tell him he had been stood down because he had been deemed a security risk and Mr Swain said that he rang to say that the investigation was concluded.
There are two versions of a letter dated 6 March 2023. The first said that the allegations in the formal notice concerned access to the CCTV system on 8 and 9 February 2023. It went on to set out the result of the investigation and said that Stockland had provided formal notice that Mr Makdessi was not to perform services at the shopping centre.
Mr Makdessi apparently responded to that letter because Mr Swain sent an email to Mr Makdessi. The letter dated 6 March was amended because Mr Swain agreed that “On review of the initial allegations I can see you were NOT subject to matters pertaining to 9 February 2023.” Considering the reference to the original allegation with Mr Makdessi’s swift and comprehensive response to the original allegations in the 20 February letter, I doubt that the allegations about 9 February were in the letter dated 20 February. If they were it is likely Mr Makdessi would have responded to them at that time. That suggests that the allegation about 9 February appeared for the first time in the letter dated 6 March. When it was drawn to his attention, Mr Swain apologised and the letter was amended promptly.
The final version of the letter does not say that Mr Makdessi was removed because he was a risk but because of a decision by Stockland. Mr Swain’s email suggests that Mr Makdessi sought that the reference to being a risk be included and Mr Swain declined. The letter confirms that the allegations were not reasonably substantiated and that no formal disciplinary action would be pursued by Millennium.
The letter informed Mr Makdessi of his redeployment and he was again offered the services of the EAP. It seems clear he did not use that service. Mr Makdessi then saw Dr Latif again and was provided with a certificate stating that he had no current work capacity. He sought to access annual leave and has not returned to work.
The factual investigation was provided with Millennium’s insurer’s decision notice dated 20 October 2023. Mr Makdessi signed his second statement in September 2023. If he disagreed with the factual matters raised in the statements of Mr Fajloun and Mr Swain or sought to offer further explanation, it would have been a simple matter for a further statement to be prepared in reply, attaching any documents that he thought might cast a different light on the events. I note that Mr Dimian’s statement was not signed until November 2023.

Medical evidence as to causation

While there is no dispute that Mr Makdessi suffered a psychological injury, it is necessary to consider the medical evidence to determine when Mr Makdessi suffered that injury because that impacts which conduct of Millennium I should have regard to. Mr Makdessi pleaded that the injury occurred on 18 February 2023 though he also implicated later events. He pleaded that the injury was caused by the accusation and by being ostracised by his employer. Mr Dimian said that the allegations made at the meeting with Millennium affected Mr Makdessi “almost instantly.”
In Hamad v Q Catering Limited, Snell DP said:[9]
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.
This is particularly so, given that the available medical evidence, …, was consistent with causes in addition to matters alleged to constitute ‘discipline’.”
[9] At [88]-[89].
Two entries in Dr Latif’s notes are relevant to determining when Mr Makdessi suffered injury and his is the only contemporaneous evidence. All of the other evidence was prepared after the completion of a series of events which took place in a short time frame.
Mr Makdessi described “notable symptoms” in his statement. On 20 February 2023, Dr Latif recorded that Mr Makdessi suffered psychological symptoms as a result of being accused of tampering with cameras and being implicated in theft. Dr Latif prescribed medication at that first consultation, suggesting that he viewed Mr Makdessi’s condition as serious. There was no reference to capacity for work but no certificate of capacity was required at that time, Mr Makdessi being stood down on full pay. The note confirms that Mr Makdessi suffered injury and the reasons for it.
On 6 March 2023 Dr Latif obtained a history that Mr Makdessi had been “terminated” and offered a job “faraway”. He determined that a claim for compensation would be made, noting that Mr Makdessi would be referred to a psychologist when a claim number was available. He provided the only certificate of capacity which has been prepared and implicated the false allegations.
In his short report dated 5 October 2023, Dr Latif said that Mr Makdessi suffered injury on 18 February.
Because an employer carries the onus of proving its s 11A defence, there will usually be medical evidence from the employer as to the causation of injury but that is not the only medical evidence to which I can have regard. Dr Young implicated both suspension and redeployment in the causation of the injury. He did not list in his report that he had been provided with Dr Latif’s notes. He said that he based his report on his consultation on the history provided by Mr Makdessi who described all of the events between 18 February and 6 March. While he said in response to a series of questions that the cause of the injury was the accusation and the suspension, his diagnosis is that Mr Makdessi’s condition resulted from “accusations of criminal behaviour occurring in the workplace.”
I am satisfied that Mr Makdessi suffered injury on 18 February 2023 as a result of being stood down pending investigation of allegations made against him. That finding is consistent with the facts relied on in the claim form Mr Makdessi later completed.

Were Millennium’s actions reasonable?

Mr Makdessi’s injury was wholly caused by action with respect to discipline.
The test of reasonableness was considered by Geraghty CCJ in Irwin v Director-General of Education:[10]
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[10] NSWCC 14068/97, 18 June 1998.
Relying on Heggie, the reasonableness of Millennium’s conduct falls to be considered as at the time Mr Makdessi was stood down. I must consider that conduct objectively. The facts as I have found them are that serious allegations were notified to Millennium on or very soon before 17 February 2023 and played out over the course of a long day. I accept that during the day Mr Makdessi was informed of the allegations and, at the end of it after locking up the shopping centre, Mr Makdessi attended a meeting at which he was stood down because of at the request of Stockland. Three days later he saw Dr Latif complaining of significant symptoms.
I accept that at the time Millennium knew that an investigation was to be carried out. When the shopping centre owner requested that Mr Makdessi be stood down, Millennium did so.
The contract between Millennium and Stockland is not in evidence. Ideally it would have been but its omission is not fatal. Common experience informs me that the services of Millennium would have been provided under a detailed, written contract and that there would have been a commercial as well as a likely contractual imperative for it to comply with the requests of Stockland. The reference to “client requests” in the section of the terms of employment in the Code of Conduct dealing with site allocations supports that.
Mr Malouf said that it Millennium cannot rely on its contractual obligation alone to prove that its conduct was reasonable. Jeffery concerned a claim by a cleaner deployed by his employer to a school who was transferred to another school over his objection but at the direction of the principal and thereby suffered a psychological injury. An arbitrator of the former Worker’s Compensation Commission found that the injury was caused by the actions of a third party and that s 11A did not apply. A Presidential Member overturned that decision on the basis that a contractual obligation by Mr Jeffery’s employer to comply with directions from the Department of Education meant that the transfer was necessarily reasonable action for the purpose of s 11A.
In the passage to which counsel referred, Basten JA said:
“Where the employer takes action on the basis of concerns of the education authority, the reasonableness of the action may need to take account of two elements. The first is whether it is contractually reasonable for the employer to accept an obligation to comply with a direction given by a responsible officer of the education authority. The second is whether the direction itself is reasonable in the circumstances. There was no suggestion in the present case that the contractual arrangement was not a reasonable one.
In the absence of an improper motive, the officers of the employer may be acting reasonably in complying with what they believed were the contractual obligations of the employer. Nevertheless, if the direction given by the school principal were unreasonable, the action of transferring the employee may itself not be reasonable. The statutory purpose is effected by having regard to the action of transfer as a whole, including, where part of the responsibility is exercised by a third party with the agreement of the employer, the reasonableness of the conduct of the third party.”
Hodgson JA substantially agreed with Basten JA but added the passage set out in the summary of Mr Doak’s submissions. His Honour went on so that the relevant passage reads:
“The question whether or not the school’s direction itself was reasonable is a factor relevant to the question whether or not the transfer was ‘reasonable action taken … by or on behalf of the employer’; but in my opinion, it would not be essential in this case for the respondent to prove that the direction given by the school was reasonable action taken by the school. The issue is the reasonableness of action taken by or on behalf of the employer; and even if the Deputy President was not affirmatively satisfied that the school’s direction was objectively reasonable action taken by the school, he still could be satisfied that the respondent’s action in transferring Mr Jeffery was reasonable action taken by or on behalf of the employer.
Such a finding could for example, in my opinion, conceivably be open on the basis that the respondent reasonably saw the direction as based on reasonable concerns of the school which either were adequately investigated or were such that it was unlikely they could be allayed by further investigation, and reasonably considered transfer as an option carrying little detriment to the worker while resolving a situation of concern and conflict. I am not asserting that it would be sufficient that the transfer appeared reasonable to the employer. The assessment of reasonableness is an objective one for the Commission; but in my opinion it is the reasonableness of action taken by or on behalf of the employer that is in issue, not the reasonableness of action taken by any other person.”
There is no evidence of an improper motive on the part of Millennium. For contractual and commercial reasons its representatives considered they were required to comply with a direction from Stockland that Mr Makdessi be stood down while an investigation took place. It is difficult to see how there was any way Mr Makdessi could have continued to perform his role at the shopping centre when the issue to be investigated was whether security guards had been involved in a security breach where CCTV cameras were turned off at around the time a break in took place in one of the shops in the centre. I am satisfied that Millennium’s conduct in acting on Stockland’s direction was objectively reasonable based on the information it had at the time.
I am satisfied that Mr Fajloun met with Mr Makdessi to explain the allegations and to explain that he was to be stood down. Millennium stood Mr Makdessi down on full pay and offered the assistance of the EAP. The allegations were conveyed late on Friday and formalised on Monday. Those steps were also reasonable in the circumstances and sought to take account of Mr Makdessi’s needs as well as Millennium’s position.
Millennium relied on both discipline and transfer in its decision notices. On the basis that Mr Makdessi had suffered injury before the offer of a transfer was made, it is not necessary for me to consider subsequent events. However, I do not accept Mr Malouf’s submission that it was unreasonable to offer Mr Makdessi a job 22.8 km away. Part 22 of Millennium’s Code of Conduct sets out the terms and conditions of employment. The passage with respect to site allocations quoted relied on by Mr Makdessi says that Millennium will “where possible” consider a worker’s residential address but that “operational requirements, client requests and company workload” may require work at another location. It does not bind Millennium to provide work at the closest site to a worker’s home nor is the transfer necessarily unreasonable because Mr Makdessi did not want to take it.
For those reasons, I find that Mr Makdessi suffered a psychological injury on 18 February 2023 and that the injury was wholly caused by reasonable action with respect to discipline. I make an award for the respondent.

[2024] NSWPIC 88

27 February 2024