Tomaras v GS Insvestment Group Pty Ltd T/a All Seasons Bakehouse

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tomaras v GS Insvestment Group Pty Ltd T/a All Seasons Bakehouse [2023] NSWPIC 615
APPLICANT:	Irene Tomaras
RESPONDENT:	GS Investment Group Pty Ltd T/a All Seasons Bakehouse
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	15 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses; parties agreed that liability issue would be determined; and if determined in favour of the applicant, directions would be made regarding the disposition of the claim; applicant claimed to have been assaulted by principal of respondent, who denied the assault; issues of credit of both applicant and respondent; cross-examination of applicant; principal was available for cross-examination, but not cross-examined; parties agreed there would be no reliance on Browne v Dunn; some of applicant’s evidence not accepted; contemporaneous photographic evidence of injuries; statement of another employee; and report to police; text messages between applicant and principal of respondent demonstrated relationship that at times appeared friendly; at other times there were complaints by the applicant of abusive treatment, not traversed by the principal; applicant has a long history of psychological disorders; respondent submitted applicant’s evidence was unreliable and could not be accepted because of her pre-existing condition, including psychotic features and paranoia; both the applicant’s and respondent’s independent medical examiners were aware of the applicant’s history, and accepted she had a psychological injury; the respondent’s independent medical examiner opined that, on the assumption that the applicant had not been harassed as alleged, her employment was not the main contributing factor to the injury, but the assumption was not made out; applicant’s ability to give evidence was affected by her distress in recalling events during her employment, rather than any attempt to mislead; consideration of Browne v Dunn, Chanaa v Zarour; Onassis and Calerropoulosv Vergiottis; AV v AW; Held – the applicant sustained injury pursuant to section 4(b)(ii); matter to be listed for further preliminary conference for orders as to disposition of the claim.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury arising out of or in the course of her employment with the respondent, pursuant to s 4(b)(ii) of the Workers Compensation Act 1987, deemed to have happened on 5 December 2021. 2. The matter is to be listed for further preliminary conference for directions as to the claim for weekly benefits and medical expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Irene Tomaras (Ms Tomaras), was employed by the respondent, GS Investment Group Pty Ltd T/a All Seasons Bakehouse (All Seasons Bakehouse) as a general assistant.
Ms Tomaras claims to have sustained a psychological injury, deemed to have happened on 5 December 2021, arising out of or in the course of her employment with the respondent.
On 14 June 2022, the respondent’s insurer, Insurance and Care NSW (iCare) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Compensation Act 1998 (the 1998 Act).
ICare disputed liability for the applicant’s claim for medical or related treatment. It disputed liability for ultrasound guided cortisone injection of her left shoulder. It noted that she had lodged a claim for a psychological injury, and not for a physical injury.
ICare issued the applicant with a further dispute notice dated 30 June 2022. This notice was issued with respect to her claim for psychological injury.
ICare disputed that the applicant was a worker or deemed worker; that she had sustained injury; and that she was entitled to either weekly benefits or medical expenses.
ICare issued the applicant with a further dispute notice, with respect to both psychological and physical injuries on 19 July 2022. The matters in dispute remained those notified on 30 June 2022.
On 24 February 2023, EML (as agent for iCare) issued the applicant with a further dispute notice. The injuries were recorded as psychological injury; bruising/lacerations of face and lips; bursitis of both shoulders; and back injury.
EML disputed that the applicant had sustained injury, either physical or psychological; and that she was entitled to payment of weekly benefits or medical expenses.
By letter dated 22 March 2023, the applicant’s solicitors requested on her behalf that iCare review its decision to dispute liability for her psychological injury.
On 5 April 2023, iCare advised that it had reviewed its decision, which was “maintained and amended”. It noted that the dispute notice dated 17 July 2022 (this may be a reference to the notice dated 19 July 2022) had been superseded by that dated 24 February 2023, and “worker/deemed worker” was no longer in dispute.
ICare advised that the dispute that the applicant had sustained injury, or was entitled to payment of weekly benefits, was maintained. It was amended to include disputes that the applicant had sustained a “disease injury”, pursuant to s 4(b) of the Workers Compensation Act 1987 (the 1987 Act), and that employment was a substantial contributing factor to any injury.
The applicant lodged an Application to Resolve a Dispute (the Application) on 1 August 2023.
The applicant claimed to have sustained psychological injuries whilst working with the respondent. She was “subject to bullying, targeting, harassment, as well as sexual and physical assault on a continuous basis. Due to same”, she suffered from PTSD [post-traumatic stress disorder], depressive disorders and anxious distress. The deemed date of injury was 5 December 2021.
The applicant claimed weekly benefits compensation from 5 December 2021 to date and continuing.
The respondent lodged its Reply on 23 August 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant has sustained injury arising out of or in the course of her employment with the respondent;
(b)    whether the applicant has an incapacity for work as a result of injury, and
(c)    whether the applicant is entitled to an award for payment of medical expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed for preliminary conference on 31 August 2023. Mr Power appeared for the applicant, who was present. Mr Mitas appeared for the respondent. Ms Ruhl of EML also attended.
The applicant confirmed that she claimed to have sustained injury by way of disease, or
the aggravation, acceleration, exacerbation or deterioration of a disease, deemed to have happened on 5 December 2021.
The matter was not resolved at the preliminary conference and was listed for conciliation/arbitration hearing. Mr Mitas advised that the respondent would seek leave to cross-examine the applicant. Mr Power advised that the applicant intended to issue summonses to appear to Mr Gabriel Shamoun and Ms Nhien Pham. I will refer to Mr Gabriel Shamoun as Gabriel, and to his brother Mr Shamoun (also called Simon) Gabriel as Shamoun, while meaning no disrespect, to avoid confusion.
The parties did not agree on the applicant’s pre-injury average weekly earnings (PIAWE). The respondent was directed to file and serve a wages schedule on or before 14 September 2023.
The matter was listed for conciliation/arbitration hearing, in person, on 23 October 2023. Mr Tanner of counsel, instructed by Ms Dahdahl, appeared for the applicant, who was present. Mr Grimes of counsel, instructed by Ms Kaur, appeared for the respondent. Ms O’Grady of EML also attended.
The Application was amended without objection to claim a general order for medical expenses, pursuant to s 60 of the 1987 Act.
The respondent had not filed a wages schedule, and agreed that the applicant’s PIAWE was as pleaded.
After Mr Tanner had conferred with the applicant regarding her employment since ceasing work with the respondent, the applicant sought to close the period during which she claimed weekly benefits at 31 March 2023.
The respondent opposed the amendment to the claim for weekly benefits. It was not able to point to any prejudice occasioned by the proposed amendment. The amendment was allowed, for reasons given at the hearing, which were recorded.
The applicant had given statement evidence of a brief period of employment after leaving the respondent’s employ.
The respondent sought an adjournment and leave to issue Directions for Production to the employer/s of the applicant after she had left its employ.
The applicant then amended the claim for weekly benefits to claim for the period from 29 January 2022 to 31 March 2023.
The respondent’s application for adjournment was refused, for reasons given at the hearing, and which were recorded.
The respondent had sought to rely on closed circuit television (CCTV) evidence dated 30 June 2022. It was not possible for me to view the footage, due to the format in which it had been provided to the Commission. The respondent withdrew reliance on the evidence.
I was informed that it had not been possible to serve Ms Pham with the summons, as she was overseas. Gabriel had been served and was in attendance.
The respondent sought leave to cross-examine the applicant, which was opposed. Leave was granted, for reasons given at the hearing, and which were recorded. There are significant issues of credit to be determined.
After the applicant had given evidence, her counsel advised that he did not seek to cross-examine Gabriel. The parties had agreed that the respondent would not submit that any inference pursuant to the rule in Browne v Dunn[1] should be drawn as a result of that decision.
[1] (1893) 6 R 67.
It was agreed that I would firstly determine the liability issue. Should it be determined in the applicant’s favour, the matter would be listed for further preliminary conference for directions as to the claim for weekly benefits and medical expenses.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission: and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 4 August 2023, and attached documents, filed by the applicant.

Oral evidence

As I have noted, the respondent sought and was granted leave to cross-examine the applicant.

FINDINGS AND REASONS

Evidence of the applicant, Irene Tomaras

Ms Tomaras’ first statement was made to the NSW Police Force and is dated 1 February 2022.
She had worked for All Seasons Bakehouse for approximately six months. She worked for Gabriel, the owner.
At some time between 9.00am and 12.00pm on 21 November 2021, she became involved in a verbal argument with a male customer. Gabriel heard the argument and came to see what was happening. He offered no assistance.
Once the male left the store, Gabriel became angry with her. He said she should not tell a customer she was going to call the police.
She could not remember what she replied. All of a sudden, Gabriel punched her with a closed fist to the left side of her mouth. This caused immediate pain to her lip and caused her to bleed. He then kicked her with his right foot once on the bottom. She was shocked and completely froze.
She was scared and did not know what to do. She ran towards the back of the shop and cried. She told “Nin” [sic] and “Bob” and explained what had happened.
She reported the incident at about 3.00pm. She was too afraid to provide the police with a statement. She did not want Gabriel to know she had spoken to the police, so she only wished to make a record of it.
At 5.16pm on the same day, Gabriel sent her a text stating “Hi Areny, Sorry about what happened today, you push me to the end, please do not scream and stress I am in bid [sic: bed] all afternoon, I don’t want more headaches.”
She replied that she had put a lot of time and effort into the shop to make it better. She felt she was not appreciated, no matter what she did. It was not about the money, but about being treated well and enjoying what she did. She felt she was gaining nothing and preferred not to help out anymore. She did not accept that he “just simply say sorry for your abusive attitude and hitting me so many times before like a slave you think it’s okay you hit and kick me on the bottom soo [sic] hard with your shoes.”
She sent further messages to Gabriel, but he did not respond. Despite the incident, she continued to work at the store for the next three to four days.
Over the next two months, she felt extremely scared about the incident and felt her mental health deteriorating greatly. She began speaking about the incident with her psychiatrist, but felt scared to disclose all the details, as she thought Gabriel was going to hurt her daughter.
At 5.30pm on 1 February 2022, she gained the courage to re-attend Campsie Police Station. She provided evidence of the text messages Gabriel had sent her, and images of her injuries.
The applicant’s next statement is dated 13 May 2022. Some of the evidence is directed to the issue of “worker”, which is no longer disputed, but is relevant to credit.
She suffered post-natal depression after her son’s birth in 1991 and after her daughter’s birth 19 years ago. It was diagnosed only after the second birth. She attended a psychologist and took antidepressants but never continued long term. She had attended a psychologist “off and on, it was 15 years ago and I cannot recall their names”. Most were not useful to her diagnosis.
In recent years she had started proper sessions and medications that had helped her a fair bit.
She injured her lower back and under the foot 11 years ago while working in a health food and drink bar. Her lawyers were ineffective, and she never pursued her claim.
She started attending All Seasons Bakery on 1 March 2021. She had been a customer for about a year and a half. She got to know “Suzanne” (Hanna), who used to work as a kitchen hand. Suzanne was unfairly dismissed. “Regardless to her accessory in verbal or written statement of perjuries submissions to police at the time.”
She had only known Gabriel when she started attending his bakery, which he and his wife, “Mary” or “Maria”, own. She had met her in the shop with her “three underage girls”.
Suzanne suggested she trial short hours of volunteering at the café. On one hand, she wanted her there, but on the other she was aware that Gabriel was not easy to work for. Gabriel made up a story that she had accused Suzanne of poisoning her daughter with a salad. He did this to cause conflict between them, as he planned to have Suzanne fired.
She asked Shamoun if she could come back and see his brother about a trial there. A short time later, Gabriel said, “How about if you come and trial for a few hours?”
She said, “OK and see how we go”. It was not her intention to be volunteering or not to get paid for nine months. Over time, her hours were getting longer, to the point where she was working 16 hours a day, seven days a week, without proper breaks.
She started being paid $120 per week, and Gabriel often made excuses to avoid putting her on the books or paying into her account. She assumed Gabriel was going to pay her.
She enjoyed attending the bakery. It was in her local community, and she felt she was helping the business and her customers.
From approximately April 2021, she observed Gabriel to be verbally aggressive towards Suzanne and later to her.
About one or two months after she started, possibly in April or May 2021, whilst she was attending the shop, Gabriel sexually abused her. He touched her breasts and forcefully “want to kiss me from the lips”. She was shaking, frightened, “froze shocked with crossed arms taken by surprise to stop him from touching me”.
On the same day, she texted him that this should not have happened. “I am a genuine staff and person in nature in the fridge room where the milk is kept no cameras access there.”
Suzanne was in the front kitchen. Gabriel abused her between 5.00am and 9.00am “sometime in May/June/July 2021 I think”. She was afraid to tell anyone, scared that he might do something else to her.
In “September 2021?” Gabriel punched and hit Suzanne, using her backpack as a weapon, “CCTV footage recording the whole scenario”. Suzanne did not take any action after being fired because her wages were undocumented.
Gabriel exchanged text messages with her when he picked her up, often early in the morning at 3.15am or 3.30am, and sometimes dropped her home. On Mondays she would wait for him near the “yeross [sic] bulldog food store” when his brother was on RDO (rostered day off). This was without her consent, and she was very uncomfortable but afraid to stop him, because she knew he could abuse her physically, as he had done to Suzanne.
In the last few months of 2021, she had arguments with Gabriel about his treatment of Suzanne. He became angry and furious and would punch her on the shoulder or pinch her. She had photos showing the bruises to him in text messages. One was taken on 17 October 2021, “the bruises would be a couple of days old.”
Gabriel would often come to work angry after a fight with his wife, which she was told by Simon. She also showed him the injuries she sustained from Gabriel, and once from Simon, as they both had a bad temper.
On 21 November 2022 [sic: 2021] she started work at about 3.00am. Gabriel had picked her up.
Some time between 3.30am and 5.00pm [sic], she was serving customers, and it was busy. A Lebanese male customer, who was not a regular, wanted his pizza before those in front of him.
She told the customer his order was almost ready, and she was sorry that as it was busy, she could not let him skip the line. He became rude, abrupt, and angry, waving his hand and saying something like “you peasant” or “you slave”.
The customer left. Gabriel was furious and asked her why she told him she would call the police if he continued to humiliate her in front of the other customers. Gabriel came to the front of the shop and told her not to worry. Shamoun told her it was not the first time the customer had been aggressive.
When the customers left, Gabriel asked why she had raised contacting the police. She said she had called him to handle the situation and he turned around and told her to deal with it. She told Simon to rewind the CCTV to see the abuse of Gabriel, but she was ignored.
She was between the cash register, where Gabriel was, and the oven where Shamoun was. Gabriel punched her on the right side of her mouth. He punched with his fist and much force. He split her upper lip in half to the point where it was bleeding. He also kicked her very hard and angrily with his steel capped boots on her bottom and lower back. She was in pain and shock. Her mouth was swollen in the area of her jaws and face. She “was in so much pain grieving and mourning for over two weeks until the injuries healed.”
She went to Nhien and Bob and told them what happened. Nhien just told her not to worry. Bob saw her crying and said he would confront Gabriel. She felt a split upper lip bleeding in her mouth. She worked for a further couple of hours and was scared.
She had provided photographs of injuries in the past and LSC (Leading Senior Constable) (Lauren) Jarman had witnessed her mouth injuries on the same day, and old photographs of some bruises she had sustained from Gabriel’s physical abuse.

She left the shop about midday. She ran crying to Campsie Police Station. She spoke to LSC Jarman and explained what happened. She showed her the photos. LSC Jarman asked if Gabriel had physically abused her before. She confirmed that he had. LSC Jarman told her she needed to leave the shop. This was caught on both CCTV in the police station and the bakery.
LSC Jarman recorded an event on the computer. She received an SMS with the event number that evening. She text messaged Gabriel that she did not accept his apology. She had kept and provided the messages to police and EML staff “Joanne”.
She walked back to the shop. Gabriel asked where she went and seemed very worried. She did not reveal she went to the police. She finished work until everyone went home safely. She had stopped Bob confronting Gabriel as she was worried about the safety of the staff.
On 22 November 2021, Gabriel told her that if she informed anyone, something bad would happen to her and her daughter, Helleni. He had made threats like that before but was now saying he knew where Helleni went to university. Gabriel said he knew people in the Lebanese community, “like a hit man and he would do it after a few years and make it look like an accident.”
She continued working until 5 December 2021. Gabriel punched her again in early December 2021, between 3.30am and 7.00am. He used his fingers and arms around her shoulders. She had a photo of the bruises.
“Only a few times”, Shamoun would get angry and pushed her, hit her on the arms, and once with a wooden stick. He was always screaming at her if she tried to sit down, eat, go to the toilet, or have a drink of water. “Yes nearly 5 months ago.”
The last day she attended the shop was 5 December 2021. Gabriel did not tell her to stop coming but warned her he would strike if she further resisted his actions. She told him “I can’t do it anymore”. They tried to talk her out of leaving many times.
On the day Gabriel apologised for hitting her, she showed photos of her injuries to a customer, “Joseph”. He told Gabriel what he did was unacceptable and illegal, that she could “put him in a lot of troubles and that he should stop and apologise.”
She ran away from the shop because Gabriel’s physical, verbal assault and sexual advances/threats continued nonstop. This was her last straw when she bled from his punch to her face and was deserted by staff without helping or offering first aid.
She found a business, Jobel’s Café, and was there for about two to three weeks. She volunteered for a week training for a few paid hours. She was not serving customers but wiping tables. At the back, she was mainly training to assist the cooks, and washing cups and glasses.
In the second week, she was paid for her few hours training for one week only. In the third week, she had a conflict with a female employee and did not collect her pay for that week due to friends of Gabriel coming into the shop. They were threatening and laughing at her. She was depressed, crying, very afraid, and called triple 0 and recorded video of their threats to fire her. She was fired because of this harassment/intimidation and provocation of her in the shop.
On 29 January 2021 [sic: 2022], she had a conversation with “George”, a good friend of Gabriel. He said he had noticed Gabriel was very harsh, abrupt, and rude to her. He was present on the day of the confrontation with a customer.
She was thinking about what George had said. She rang triple 0 and said Gabriel’s shop was an unsafe environment. She said a lot of things but could not explain it properly.
She walked to All Seasons Bakery and into the front of the shop. She told Gabriel he was a dictator, not safe for the public and staff, and abusive towards vulnerable female staff, and to tell the customers how he abused her.
Gabriel and Simon said she was from off the streets and told the police and others they did not know who she was. She was interrogated by the police and told them everything he had done to her, showing them the photos/event number. She had developed Borderline Personality Disorder (BPD) during work and had been put on medication by an RPAH (Royal Prince Alfred Hospital) specialist.
She remained outside the shop when the police arrived. They thought she needed immediate medical attention and required ambulance assistance. She told them she had been physically abused by Gabriel and he needed to be behind bars. He had served in the Syrian Army, and both he and Simon were very dangerous.
The police issued a PVO (Police Violence Order) without admission, that Gabriel breached a few times. She was not allowed to attend the shop. This expired in two years.
She was admitted to RPAH mental health unit for about three days. The doctor on duty suggested it would benefit her to stay voluntarily.
After she left hospital, she asked Campsie Police for an AVO (Apprehended Violence Order) against Gabriel. She asked twice and was refused. She was so traumatised she had forgotten to show police his apology on the day of his attack.
The police had a written statement from her and opened an investigation. She had pressed charges against Gabriel. The police were unable to obtain CCTV footage of the day of the incident and had delayed asking for it. LSC Jarman informed her she had asked for it, but Gabriel denied them access. She considered it may be kept on a master server and “the main Seattleite” [sic]. The police had neglected her matter and made many mistakes.
She and Gabriel attended Bankstown Local Court in April 2022, regarding his physical abuse of her. The judge granted an AVO interim order against Gabriel. The first hearing date was 23 September 2022.
She started increasing psychological treatment regularly in about January 2022. She went to St John of God Clinic in Burwood. She had attended psychiatrist Dr Eddie So about every month. RPAH contacted him and told him she had BPD.
Her next court date in relation to protection of herself and her daughter was on 15 June 2022.
She had provided SMS messages between herself and Gabriel, and herself and Suzanne. The messages with Gabriel were mostly in English, but some were in Arabic.
The applicant’s last statement is dated 18 May 2022. It appears to have been made in connection with the AVO/s.
Gabriel was not allowing access to the CCTV footage (approximately nine cameras), where incidents had happened to her and Suzanne. She believed he was reluctant to do so because it would incriminate him.
She believed he had been advised by his lawyer to deny everything and mislead police about the messages he sent her admitting everything and apologising for hitting her the day she reported it to LSC Jarman.
Gabriel also kicked her bottom. On another occasion, he used Suzanne’s handbag as a weapon and hit her. Shortly after, Suzanne was fired. This incident would also be recorded.
She believed Gabriel was involved in many unlawful practices. He had committed perjury, as he had lied in every statement to police. The fact that he was denying access to the footage was a clear display of injustice.
It was likely that Gabriel had attempted to delete, overwrite or destroy the footage to avoid prosecution. This would be made clear if a subpoena of [sic] production was approved.
The applicant made a further statement dated 20 July 2023, to “give context in relation to the messages on WhatsApp exchanged between myself and Gabriel Shamoun as well as the timestamped photographs.”
Much of the statement repeats the applicant’s earlier evidence.
In relation to the messages exchanged on 29 November 2021, they related to an incident on 21 November 2021.
On that day, there was an excessive breakfast rush at around 9.00am. A male customer of Middle Eastern descent pushed to the front of the line and demanded his pizzas before the customers in front of him. He was very abrupt and aggressive.
She explained to the customer that he could not push in and asked him to take a seat and wait. He got very close to her face and started intimidating her by raising his voice. She felt afraid, scared, and overwhelmed. He became increasingly aggressive, and she kept asking him to stop and calm down.
Around 15 to 20 minutes later, Gabriel came to the front of the shop. She asked him to “deal with” the customer. He said, “I am not dealing with you [sic], you have to deal with it.”
The customer started yelling and telling her she was nothing, stating “You do what I tell you to do.” She told him if he did not calm down, she would call the police. The customer went to the back of the shop. Another customer stated he would tell the aggressive customer to “back off” if he did not leave her alone.
Gabriel heard her comments and asked why she threatened to call the police. She stated it was because she was scared and had no assistance.
When the customer left, and there were no customers, at around 11.30am, she started to make pizza boxes. She needed to bend the top half of her body forward, looking down.
She was completely off guard when Gabriel approached her and punched her in the lower half of her face, on her jaw and lip area, with his right hand in a closed fist.
He punched her so hard that her upper lip smashed into a tooth and started to bleed. She was so shocked and dismayed. She did not know what to do, so she just froze as she was in disbelief. He was wearing metal cap boots and kicked her on her tail bone. She cried out in pain and started crying uncontrollably.
She felt numb, broken, scared, anxious and afraid. She tried to confide in Shamoun, but he did not believe her. She told him to check the CCTV footage, but he ignored her.
She worked quietly for the next few hours. She felt like a robot, in complete disassociation from what had happened, and tried to forget about it.
She waited a few days before messaging and confronting Gabriel on 29 November 2021, because she was so disassociated and scared and afraid of him. She wanted to reclaim her confidence, so chose to confront him in messaging.
Some of the messages were in Arabic and have been translated. She explained to him that she felt she had no dignity, he had traumatised, belittled, and abused her.
Gabriel stated he did not have time for these messages and ignored her. She took photographs of the incident [sic] on 21 November 2021 at 7:18pm to keep a record.
It was “important to note” that the abuse was ongoing during her time there. Gabriel would always be aggressive towards her and grab her arm and dig his fingers into her arm extremely hard, leaving bruises. She took a photograph on 17 October 2021 at 10:56am to show the bruises.
She continued working for Gabriel because he constantly threatened and controlled her. He would say “watch what happens” if she said she did not want to work with him anymore. He would also say threatening remarks about her daughter.
She felt she had no choice but to stay to protect herself and her family.

Applicant’s oral evidence

The applicant confirmed in her evidence in chief that she recorded her injuries on her mobile phone, for her own safety and security.
The applicant said the bruises on her arm were received “just after March, after he (Gabriel) abused Suzanne in front of me, regardless, a few times in different occasions. There was [sic] 18 workers present and none of them got involved”.
The applicant gave evidence that the bruises shown in the photograph on 17 October 2021 were caused by Gabriel. The injuries to her mouth shown in the photograph on 21 November 2021 were taken by her.
The applicant indicated that on 21 November 2021, Shamoun was behind her. She was lifting pizza boxes. She had had an exchange with a customer. Gabriel took her by surprise by hitting her with his closed fist on her face, aggressively, “on my right face”.
The applicant indicated she was facing Gabriel and he hit her. Her lip got caught up with her teeth. She indicated the right side of her face. As she was running to the kitchen, he hit her “really hard” with his “work cap shoes with the metal, hit me right there on my butt.”
The applicant went through to the kitchen area, to Nhien and Bob. She does not know Bob’s surname. She told them it was caught on the CCTV. She was crying, emotional, and said to Nhien, “He hit me”.
She showed them how Gabriel hit her at the time. She was shaking, Bob said he would confront him, as “that’s not on”.
She said Gabriel was not safe, “He’s dangerous. Don’t do it. You guys are my witness. I’m fleeing the shop but take care of yourself.” She was panicking. She left all her stuff behind. She only got her bag with her ID and did not know how she ended up walking to Campsie Police. She went straight to the police and told them she had been assaulted.
There were CCTVs “everywhere”, throughout the premises. They would have recorded the incident.
In cross-examination, the applicant was asked whether, when she gave a statement to the police on 1 February 2022, she told them she was punched on the left side of the face or the right side.
The applicant answered, “Right. But if I was to be emotional and I said something completely different, not because it’s delusional… I’m not delusional.” She denied that she could get things wrong when she was emotional.
The applicant identified the statement she had made when she came out of hospital, witnessed by (Constable) Jake Redston. She had signed it on 1 February 2022. She was asked if she did her best to tell the truth, and responded that she always told the truth, “but you guys hiding the CCTV”.
The applicant was asked whether she agreed that her memory in February 2022 of the incident would be better than her memory of it today.
She responded that she was “all over the place” because of the trauma she had to go through. She asked “Are you trying to trick me on something that I know very well he hit me? I am not delusional, and you know it, and you’re trying to protect him.”
The applicant maintained she had been hit on the right side of the mouth and photographed it with her phone. She was hit on the upper lip, with a closed fist.
The applicant gave evidence that she was not sexually assaulted on the day she was hit. She could not remember whether she received any bruises on her arms that day. The sexual assault occurred a few weeks before Suzanne was fired “so not to become a witness in court and cross-examined by us.” She was deliberately fired.
The applicant was asked whether she was aware that she would get more weekly compensation if the respondent did not know she was working for anyone. She responded: “That’s your job. I don’t work for the Commission… I, expertise, no, I have no idea. I can’t answer that question.”
The applicant had started work at “Lulu’s”, a “few months ago”. She used the cash register, “I run around”. It was “one, five hours every week or a couple of hours. It depends. They ring and let me know”. She never worked more than five hours.
The applicant denied lying about her subsequent employment. She was still receiving Centrelink benefits, and Centrelink knew about her employment.
In re-examination, the applicant was asked about a TikTok video she sent to Gabriel, headed “Repentance for Sexual Crimes”. She said he proclaimed to be a “straight Christian Orthodox” and she specifically sent him one with a Christian Orthodox abusing people like herself, “young people, vulnerable people like women that, like children that cannot speak because of him, this coward creature”.

Evidence of Nhien Pham

Ms Pham was employed by the respondent as a food preparer. Her first statement is dated 11 May 2022. Some of her evidence is directed to the issue of “worker”.
When Gabriel spoke to Irene, he spoke in a normal tone. He did not yell or shout at her. Irene would sometimes shout at other staff. She did not listen to what they were talking about.
She recalled working some time in November 2021, when Irene told a customer she would call the police on him. She did not know what he had said or done. Gabriel came to the front of the shop and calmed Irene down. There were customers there.
She did not see Irene going to the back of the shop on the day of that incident. She remained in the front and continued to serve customers. Gabriel was also serving customers.
There were usually one or two workers in the back of the shop, which is usually where she was. There were CCTV cameras in both the front and back of the shop.
She recalled Irene coming to her with an injured or bruised lip or mouth. She alleged Gabriel had punched her. She was crying a little.
Neither she nor Bob observed Gabriel punch Irene. They were at the back of the shop and did not hear anyone arguing.
She had never observed Gabriel to physically or sexually assault Irene, either that day or at any other time.
She recalled in about late November 2022 that Irene was telling other staff to pay for what they wanted to drink. Gabriel said it was his business and they could eat or drink whatever they needed without paying.
She was told by other staff that Irene once threw a tray on the ground, but she was not there at the time.
Irene stopped coming to the shop late last year (2021) and she was not seeing her anymore.
She recalled a Saturday morning, possibly in late January 2022, when Irene came to the shop and was shouting and making noise. She could not understand what she was saying. The police came and spoke to Irene and went away. That was the last time she saw Irene.
Ms Pham made a statement to the police on 16 June 2022.
On a day in December 2021, she was working at All Seasons Bakehouse. She could not remember the exact day. Bob, Gabriel, Simone [sic: Shamoun] and Irene were also in the store.
She was in the kitchen at the back of the store and Irene came into the kitchen where she and Bob were working. Irene seemed upset and was crying. She said, “Gabriel punched me”.
She could not see any injuries on Irene. She did not see what happened, other than what Irene told her. After that, Irene went back to the front of the store.

Evidence of Gabriel Shamoun

Gabriel’s statement is dated 5 May 2022.
He first came to know Irene Tomaras as an occasional customer of the shop, sometime after it opened in 2019.
Irene had never been an employee. Her name was not in their staff records. She had never been paid money by them. He had received volunteer workers, who worked from one shift to several weeks. If they liked the worker, they would employ them part time.
Irene offered her time to Shamoun. There was no interview or application. There was no paperwork regarding her voluntary work. She did not provide bank details or an ABN (Australian Business Number). There were no records of her attendance.
It was possible that Irene started volunteering in late 2020 or early 2021. She ceased volunteering in December 2021.
It was not true that anyone paid Irene $120 or any cash or other type of payment. She simply volunteered the whole time she attended. She never requested that he pay any money into her bank account.
Irene had no set days that she attended. She came in most days, at different times when it suited her. She performed tasks at the front of the house, including serving customers, making coffee, and tidying.
Irene wanted things done her way, especially if he was not in the shop. She told other staff what to do and how to do it, which annoyed them.
On two occasions, Irene caused problems with customers. She would argue with them and even told them off. Sometimes she said she had to go to court as she had matters to do with AVOs and the police.
When he spoke to Irene, he spoke in a friendly manner. He treated all the people at his shop as friends.
A person called Bob used to work in the shop as a cook. He no longer worked there.
He denied sexually abusing Irene by touching her breasts in the fridge room or anywhere else, either in April or May 2021, or at any time.
He denied that he asked Irene to massage him in the shop, in the back kitchen or anywhere.
Irene wanted Suzanne to be fired, and did not get along with her, even though they used to be close friends.

He denied that from about October 2021, he got angry and punched Irene in the shoulder when they had arguments. The only arguments were about whether staff should pay for drinks.
On about 21 November 2021, Irene told a customer she was going to call the police. He had been wanting to pay, but she told him to get out. It was a busy time.
He asked her to calm down and let him deal with the customer. She shouted and screamed things like “I need him to go out”. This was occurring in the front of the shop, so there were other customers present. Shamoun was there as he was working in front of the oven.
She eventually calmed down and he pleaded with her not to abuse their customer. They had no physical contact when this occurred. He denied that he punched her in the mouth. He had never punched Irene.
He had read an SMS sent to Irene at 5:16pm on 21 November 2021. The reason he said he was sorry was because Irene thought he did not support her against the customer. It is correct that he asked her not to scream and stress as it was giving him headaches.
He denied that on 22 November 2021 or at any time, he threatened to have Irene’s daughter harmed if she said anything to anyone. She attended the shop often and got along well with the staff. He and they felt sorry for her because of her mother’s erratic behaviour.
He denied that in the early hours of the morning in early December 2021, he punched Irene in the shoulder using his fingers.
Some days after this Irene had an argument with all the workers. He thought she wanted them to pay for coffee or drinks they were consuming. She took a tray door and slammed it in front of workers, including Mary Mikhael. The workers became scared of her.
He had never physically or sexually assaulted Irene. He had never inappropriately touched her body.
He had CCTV cameras in the front and back of the shop. The camera man told him the recordings last about one month before they are taped over.
Sometimes Irene would be cooperative and got along well with everyone. At other times she would argue with people and become very aggressive.
Irene stopped attending the shop in about December 2021. This was just after she had the argument with the staff and lost her temper. She threatened that she was going to have his shop closed to harm them.
He told Irene calmly there was no point for her to tell the staff to pay for drinks or food. After he told her this, she stopped attending the shop and stopped volunteering. He deleted her number because he did not want to have anything more to do with her. He did not know if she sent any messages saying she was [sic].
He learned from the owner of Jobel’s Café that Irene had volunteered there.
On 29 January 2022 at 10.00am, he heard a noise. Shamoun told him to come see this crazy lady. He went to the counter. Irene was on the footpath outside the shop. She was shouting at his brother, saying things liked “I am going to close the shop. I am going to get you bankrupt. Your kids are not going to be safe.”
Tony from Belmore Valet a few doors up took her mobile phone. She had been speaking to the police and he told them she was crazy. Their customers were scared.
After about two minutes, the police arrived. Steve, the hairdresser next door, told him they checked Irene’s bag and spoke to her.
A policeman called Adam asked him what was happening. Adam acknowledged Irene appeared to require treatment. They explained that she had approached the shop and attacked them. Adam then went to the police station.
He later attended the police station. Adam told him that as Irene was a dangerous lady, he took out a PVO against her.
After two weeks, Adam phoned and asked him to go to the police station. He provided a statement, and the CCTV footage of what had occurred on 29 January 2022. He provided the police event number.
At the end of March 2022, a police officer from Campsie informed them that Irene went to Bankstown Court and made allegations that he had assaulted her on the day of the incident in 2021. The officer told him he needed to attend court on 6 April 2022.
On about 4 or 5 April 2022, LSC Jarman attended the shop and spoke with him. She said Irene alleged he assaulted her at the back of the shop on 21 November 2021, and they had been alone. This was false, as Nhien was working at the back of the shop that day, and he did not assault Irene in any way.
He attended Bankstown Court on 6 April 2022. This was her (the applicant’s) attempt to put an AVO against him and their staff. Irene did not succeed in getting the AVO. He did not have a lawyer with him.
In early April 2022, Erika Groll and John Whatman from WorkSafe NSW came to the shop and informed him that Irene had complained about their business. They said the allegations were that she was assaulted and abused. He explained she was not abused or assaulted. Irene was the one that had verbally abused by Irene [sic].
The owner of Jobel’s Café had informed him Irene tried to put an AVO on the wife of the owner of Grandpa’s Dairy yoghurt shop in Campsie.
The police at Campsie appeared to know Irene well, as she had phoned them often and caused a lot of work for them with various allegations against different people and businesses.
He had appointed a lawyer to represent him in relation to the AVO and allegations Irene had made.
The CCTV had been in the store a long time. He upgraded it about a year ago. A customer, Theo, installed it. He could not tell him how long the footage was retained. It could be a month or a month and a half. The hard drive was in the shop. The police had not asked him for any footage.

Evidence of Shamoun Shamoun

Shamoun is employed by the respondent. His statement is dated 5 May 2022.
He baked all the food, including pizzas and finger food, in the oven. The oven was at the door between the front and the back of the shop.
He came to know Irene Tomaras as a customer, perhaps in late 2020. She would speak to him, other staff, and whoever she could see. She was a friend of former staff member Suzanne Hanna.
Irene had not been employed as a worker of the business. She had not been paid by the business. She had taken food and drinks for herself and her daughter with their knowledge.
They sometimes had volunteers at the shop. Some worked on a trial basis and his brother decided if he wished to employ them. Some were sent by schools for experience, so they did not pay them anything.
Irene asked Gabriel if she could do voluntary work. Gabriel did not object. She worked in the kitchen and then operated the coffee machine and cash register.
There was no agreement with Irene. She did not have set times to be there. She attended when she liked. Gabriel at times told her to go home, but she said she enjoyed being there. She liked, and treated well, some customers. She did not like others.
Irene told him she had problems with her ex-husbands. She had three. The last one was Iraqi, old-fashioned, and tried to beat her. As a result, she had to take anti-depressants.
He noticed that Irene’s behaviour changed from time to time. Sometimes she was polite and friendly, and at other times she was aggressive and argumentative.
When Gabriel spoke to Irene, he spoke pleasantly. When Gabriel was not in the shop, she tried to boss other staff around, and tell them what to do and how to do it.
He recalled that possibly in November 2021, Irene told a customer, Maroun, that she was going to call the police on him. She was aggressive towards him. He was a regular customer and was not causing any trouble.
Gabriel went to the front and asked Irene calmly to go inside the kitchen, and Gabriel would take the order. Irene did not listen. She just stayed in the front of the shop and kept talking.
He did not see Irene going to the back of the shop whilst Maroun was present. It is probable that he was standing at the oven as he normally did.
He did not observe Gabriel punching Irene on the mouth or any part of her body on 21 November 2021 or any other time. He had never observed Gabriel or any other staff to assault Irene.
Irene and her daughter often drank coffees without paying. In about late November 2022 [sic: 2021], Irene was telling other staff in a loud and aggressive manner to pay for what they wanted to drink. The other staff avoided contact with her.
There were usually one or two workers in the back of the shop, whether Gabriel was there or not. There were CCTV cameras both in the front and the back.
Following the disagreement with the other staff, Irene said to Gabriel, “It’s either me or them.” Gabriel told her he did not want her to come to the shop anymore. She stayed for a few days. He spoke to her calmly and told her not to make any problems.
Irene stopped attending the shop in about December 2021, when they were quite busy.
Possibly in late January 2022, on a Saturday morning, the shop was full. Irene came inside and started shouting that the shop should be closed.
They did not respond to Irene. He did not know who called the police, but they came outside the shop. The ambulance came as well. He was at the oven, so did not see everything happening outside. The police did not come into the shop.
In recent months, the police had spoken to him once, asking about Irene and her behaviour. He considered that Irene became upset after Gabriel asked her not to come there anymore and was trying to cause problems for their business.

Evidence of LSC Lauren Jarman

LSC Jarman’s statement is dated 31 August 2022.
On 1 February 2022, Tomaras attended Campsie Police Station, as she wished to provide a statement in relation to the assault in November 2021.
Constable Redston obtained a statement. Tomaras provided him with four photographs of an injury to her upper lip she stated she sustained as a result of the assault. She also provided photographs of text messages between her and (Gabriel) Shamoun.
On 5 April 2022, she spoke with (Gabriel) Shamoun. He was cautioned and denied assaulting Tomaras on 21 November 2022 [sic].
She also spoke with Shamoun Shamoun and Mary Mikhael, who informed her they had not witnessed any assault. She made enquiries in relation to CCTV. Shamoun advised her it was not available for the time of the incident.
She received information from Tomaras that Suzanne Hanna had also been assaulted by (Gabriel) Shamoun. She contacted Suzanne via phone, and she said she had never been assaulted by Shamoun or witnessed any assaults by him.
On 16 June 2022, she spoke with Nhien Pham. She provided a statement.
On 8 August 2022, she arranged for Hanna to attend Campsie Police Station to provide a statement. She did not attend.
On 24 August 2022, she attended Tomaras’ residence and obtained photographs of her phone with the photographs she took of her injury, showing the timestamp when they were taken.
On 7 September 2022, she attended Hanna’s address, where Hanna provided a statement.
She received correspondence from Tomaras, including a photograph of her with a bruise to her chest area. It is dated 14 December 2020.
On 7 September 2022, she contacted Tomaras via phone and asked her about the photo. She stated the injury was caused by (Gabriel) Shamoun. When she was asked why the photograph was dated 2020, prior to her employment at the bakery, she stated “I cannot explain that.”

Evidence of Suzanne Hanna

Ms Hanna was formerly employed by the respondent as a chef. Her statement is dated 7 September 2022.
At the beginning of 2021, Irene Tomaras started working at the shop. She was working at the front counter.
As soon as Irene started working in the shop, there were problems. Irene showed no respect towards her and was turning staff against her by talking behind her back. She was verbally abusive towards her and other staff. She was also abusive to customers, who would stop coming to the shop. She heard Irene swear at Gabriel and tell him to “fuck off”. This happened all the time.
Irene would scream in the shop and make the staff and customers very uncomfortable. She felt Gabriel was scared of her because of what she was capable of doing. She never saw him yell at her. He only ever spoke to her politely.
She never saw Gabriel assault Irene or any staff. He never assaulted her. He would never do that. He was a good boss, and it was a good place to work until Irene started working there.
She quit the bakery in January 2022 because of Irene. Her behaviour and treatment of everyone made her very stressed, to the point where she could not work there anymore. She did not go to any shops down there because she did not want to see Irene.
A couple of months after she quit, Irene tried to ring her, but she didn’t want to get involved. Irene got a friend of hers to ring, but she told her to leave her alone.
She never saw any injuries on Irene whilst she was working at the shop. She tried to limit her contact with her, and never spoke about her private life. She never told Irene that Gabriel had assaulted her.

Evidence of Helleni Tomaras

Helleni is the applicant’s daughter. Her statement is unsigned and undated. It was made in support of keeping the PVO against Gabriel in place.
She believed Gabriel had the capacity to hurt her and her mother. She agreed with her mother’s statement.
This was not the only ongoing case the applicant had with Gabriel. Because she was abused in the workplace, they had a separate case in regard to that.
Access to the CCTV footage in the place of employment would “definitely be able to prove” the applicant was verbally and physically abused. “Therefore this is not the final stage where we will be dealing with Mr Shamoun. The need for the PVO to stay in place is imperative as it validates both myself and my mother’s safety”.

Text messages

There are a number of text messages between the applicant and Gabriel, some of which are in Arabic, with a translation having been provided.
I do not intend to refer to every message. Some refer to, for example, arrangements for Gabriel to pick the applicant up for work or matters relating to provisions for the shop. I have in certain messages added punctuation to make the meaning clearer. It is not clear when some of the messages were sent, and they are not in chronological order.
On 13 November 2021 the applicant sent the following text to Gabriel:
“I understand everything, Gabie. I want to apologise profusely for today. Do not be upset with me, I apologise. You should have been honest with me so I could support you. You are mysterious. But whatever happens between us I know I will always remain close to you. Good night. But I am hurt from the inside from your cold attitude towards me. May God forgive you for hurting me.”
Gabriel responded “OK” and the applicant asked him where he had placed the beans he wanted her to boil.
On 18 November 2021, the applicant sent Gabriel a lengthy message. It included:
“I look out for you and for everything, and I treat you like more than a family. I consider you my blood and I respect you very much, yet you all treat me like a sheep or donkey. Can you tell me why?
…
I respect all we have gone through, the food [sic: good] and the bad. I stood by you and all I asked for was a simple favour which only required 5 minutes of your time. I asked before you, Bob, and Simon became busy, yet you all ignored me. When I asked why the delay, none of you had the proper descent [sic] communication to come and talk to me. I fell into many troubles and there was a large impact. You left a tear in my eye, and I am now convinced that I am nothing, and you all do not respect me and treat me as though I have no feelings. Why Gabie?
…You all stepped all over me by this action which was only intended to insult me.”
On a date in November 2021, which is not clear, the applicant sent the following message to Gabriel:
“I did not give up on you for a moment, and I supported you with everything all along, and this is how you and the other employees repay me. Why didn’t you give me a convincing reason so I can tell myself that I wronged you?! I thought I would eat in the store so that I can support you…yet you play me and get on my nerves as though you want vengeance from me?
…
I appreciate and respect you regardless of whether I am with you or not. I am not like your other employees. There is no way this will happen. It’s okay, consider it as though nothing happened, thank you. May God forgive you, that is all… I told Simon that I will pay you for the food and coffee tomorrow.”
Gabriel responded:
“You told me you need it hotel style. I didn’t let bob to make it but I stuck with Nutroaster to return the stolen money. Tomorrow I peak [sic: pick] you up 3:35. We have fadi order. Thanks for today.”
On 29 November 2021, the applicant sent Gabriel pictures of her open mouth. There is what appears to be a red mark on the right side of her upper lip. She also sent pictures of her right upper arm, with what appear to be several bruises.
Gabriel responded: “You forgot your glasses”.
Apparently on the same day, the applicant sent Gabriel the following message:
“I went to the police station after you hit me and kicked me Gabie. Also the head of female police that opened the case told me you will be arrested on the spot and locked up until someone represents you…I was broken. I told her No, they exactly same as my family and my best friend. Gabie is a good father. Has 3 little beautiful girls depends on him and his wife too. I will never ruin a home for the sake of being a victim of violence caught on Camera and a ligit [sic] one witness is willing to say the truth of this violence against me.
The head of female violence unit police said Ok Irene As you wish if you refused him getting locked up after giving a statement. You are ‘a wise lady and leave this place asap if I was you Irene!’
I could have made you fire all these worms you have employed, ruin your home…but I have dignity and a clear conscious [sic] and I am above you. But you’re the one who has lost, and you have betrayed all the honesty and loyalty that was in our relationship…You know very well why I have an open case number from when you assaulted me. You forced them to close the case, you and Miray [sic: Mary or Maria] were planning on firing me in January.
…
You have made the wrong decision and you are the one that lost. May God forgive you and return to you all that you have done to me. Keep that in mind.
I am not Lebanese, and because I am not honourable, as you say.
Because I am unworthy, vile, stupid, and a homewrecker. I have nothing to gain from all this and I could have done much more than you can imagine. Let those who have remained benefit you, please. I am coming back to take my glasses and leave for good. May God curse the hour in which I met you, I say this from my heart. If it were one of the Lebanese girls they would have stomped on your head. But because I come from an honourable family and have morals, not from the streets of Lebanon, you broke my heart, entity [sic], and dignity. May you always be pleased with your daughters. I will send you photos from the police station as soon as I reach it [illegible] case.”
There then appears a screen shot of a text message from LSC Jarman, providing the event number, a telephone number, and the website of Victims Services.
The next, undated message from the applicant said:
“I give you until the 15/01/2021[sic:2022] to go like you’ve ‘ordered me’ what goes around comes around. Karma will get you sooner or later just like the rest of them in the back. I want to see you suffer just like you made me suffer. I forgive you but I don’t forget. You will drop me off. I don’t want to [Arabic word] have anything to do with you Gabie.
Don’t you dare come near my doorstep. I will come to you in the morning.
Leave me alone.
You are not welcome near my doorstep after your true colours came out today Gabie.
Honesty is the best policy in life. God help you in your illness amen. I know you are ill I am aware of it. Allah heals you amen.”
Gabriel responded:
“Please leave me alone, I don’t have time for this shet [sic], I have work to do and you gus [sic] don’t have anything just creating problems.”

On 30 November 2021, Gabriel sent a message that said:
“Ok no worries Thanks”; and on 2 December…” “Hi Areny Do you want a left [sic] tomorrow or you got the car?”
On 3 December 2021, the applicant sent a message that said, “What time tomorrow please?”
Gabriel responded “3:55”.
On 4 December 2021, the applicant blocked, then unblocked, Gabriel’s number. On 5 December 2021, she again blocked it.
On 11 October 2021, the applicant sent Gabriel a message about trying a summer promotion of a Vegemite pizza.
On or about 16 October 2021, Gabriel sent the applicant a message: “Remember to be teamwork with Simon, motivate him and be his older sister. We need every customer the time is hard.”
On 18 October 2021, the applicant sent Gabriel a picture of some flowers given to her by a customer. He responded: “Good on you. Nice with 90% of the customer. Be nice with the rest 10%.”
On 4 November 2021, Gabriel sent the applicant a message:
“You don’t have anything to do.”
The applicant responded:
“I do my hair. Simon gave me extra money from his own wallet money by accident. Tell him I will give it back today when I am finished Haram. He is soooo silly oh my God. Tell him please.
I have just counted it now. He has given me haram $100 extra from his own personal money. Tell him when you get a chance. I know he is busy. That’s why I didn’t call him directly.”
Gabriel responded: “Ok no worries.”
On 7 November 2021 the applicant forwarded Gabriel a video entitled “Natural Remedies for a Headache”.
On a date that is unclear, the applicant sent Gabriel a message:
“I am now just finished.”
He responded:
“Ok you can peakup [sic]. I have massive headaches I see you tomorrow morning near your home 3:45.”
The applicant responded:
“Go to bed and rest please. I can understand. May God strengthen you.”
On a date that is unclear, the applicant sent Gabriel a picture of containers in the kitchen, complaining that “they’ve left them dirty”.
Gabriel said to leave it and they would clean it tomorrow. The applicant responded:
“Don’t be silly it’s not an issue. However no matter how much you do for the typical arabs [sic] from is [sic] part of the world they’re absolutely inconsiderate and extremely careless ignorant people generally speaking. It’s a sad case.”
Gabriel responded:
“Ok see you tomorrow morning. I am going to sleep.”
On 9 November 2021 the applicant sent Gabriel this message:
“You know that I cherish and love you dearly. Don’t hurt me with your harshness. Don’t make me cry or break my heart, I’m not just any woman okay.
He was so polite, and I politely berated him. He went crazy.
I remember the guy’s face. That’s his car and number plate when I was trying just to help so he doesn’t fight with Simon. He was so polite and he went crazy.”
There is a picture of a car with its number plate visible.
The message possibly continued (the date is not clear): “Do you know this guy? He hates your shop he said.”
On 10 November 2021, the applicant forwarded Gabriel a video entitled “Repentance for Sexual Crimes”.
Gabriel sent the applicant a message:
“Hi. Tomorrow do you want me to peak [sic] you up at 3:35am?”
The applicant responded:
“Just tell me what [sic] you get there and I will be there. No worries thanks. Gdnite [sic].”
On a date that is unclear, Gabriel sent the applicant a message that he would pick her up tomorrow at 3.40am. She responded: “No worries thanks Gabie.”
On 21 November 2021, Gabriel sent the applicant the message of apology she has referred to in her statement.
“The applicant responded:
“I’ve put a lot of time and effort into the shop to make it a better place and I feel as if I am not appreciated no matter what I do. It’s not about the money for me. It’s about being treated well and enjoying what I do and now I feel like I am gaining nothing and prefer not to help out anymore. I don’t accept your [sic] just simply say sorry for your abusive attitude and hitting me so many times before like a slave. You think it’s okay to hit and kick me on the bottom soo hard with your shoes. You told me I was not honourable and that Sawsan has more honour than I do.
Thank you very much for your appreciation, and loyalty. I have never been more insulted than I was by you. I am in shock and scared that you might lose your mind and hurt me in the future after you hit me today. No matter how much people yell, I will never allow anyone on this earth to do that.
You have belittled me and I have suffered a mental breakdown. I no longer have self-confidence. My God forgive you. I am willing to help you for 6 weeks until you find another worker.”

Video of “Repentance for Sexual Crimes”

There is a translation of the contents of the video, which I will not repeat in its entirety.
The video depicts “Nearly 120 Christian bishops and clergy gathered in Lourdes to repent and ask the Lord for forgiveness for what was described as ‘a disgrace’ by the French Catholic Church.
Sexual abuse against children carried out by about 3,200 clerics of the French Catholic Church, affecting more than 300,000 children over the course of 70 years, most of which were male minors, all amid silence and cover-up by church officials, which were [sic] described as ‘systematic.’”

Evidence in Federal Circuit and Family Court of Australia

All Seasons Bakehouse lodged a defence in the Federal Circuit and Family Court of Australia in what appears to be proceedings brought by the applicant against it and Gabriel (as the first and second respondents respectively).
The respondents stated that the applicant was employed as a permanent/part time employee at an agreed wage of $700 per week, the applicant requiring that the first respondent pay her in cash. The hours she worked were in accordance with this agreement.
The applicant was employed as a Restaurant/Café Worker Grade 1. She worked 30 hours in six days of each week throughout her employment, that is, five hours per day. Her correct grading was Grade 1 Food and Beverage Attendant, and the wage paid to her exceeded the award.
The respondents denied that the applicant worked in the business within the early morning period (which is inconsistent with the text messages above). She did not work any shift for more than five hours.
The respondents admitted that the applicant had an entitlement to annual leave calculated on the basis of working 30 hours per week at the wage of $700 per week. They acknowledged they were liable to pay the superannuation guaranteed contribution at the prescribed rate on all wages paid to the applicant and admitted having failed to do so. They acknowledged that they did not provide her with payslips.
The respondents asserted that the failure to pay her annual leave and superannuation arose because the applicant required payment in cash, and her refusal to provide her date of birth, tax file number, and details of her superannuation fund.
Gabriel admitted that the first respondent was under his management and control.

Medical evidence

Much of the medical evidence relates to the applicant’s physical injuries and is therefore not relevant.

Campsie Medical & Dental Centre

There is a history of depression dating from 2012.
On 20 May 2020, Dr Neal Prendergast recorded that the applicant was keen for a review of her formal diagnosis of “depression/anxiety/PTSD”. She had discontinued Lexapro as she felt it was exacerbating feelings of anger. She was referred to Dr So, “she is known to his service”.
On 24 July 2020, Dr Prendergast recorded “stress. granddaughter kidnapped! Brought by her mother to Brazil”.
On 26 September 2020, Dr Prendergast recorded that the reasons for contact were low back pain and mental health.
On 18 June 2021, Dr Rafat Lawendy referred the applicant to Dr So, for his opinion regarding her severe PTSD.

Mr Emad Girgis – psychologist

On 21 August 2017, Mr Girgis reported to Dr Maher Millard [sic: Milad].
The applicant was divorced and had “dedicated her life to raising her daughter.”
The applicant complained of a difficult and distressing life. She described her abusive marriage, divorce, and raising two children, as a struggle. She was living in a homeless refuge with her daughter.
The applicant complained of low self-esteem, low mood, worry, anxious [sic], nightmares, hyper-vigilance, and sleep disturbance.
Mr Girgis diagnosed the applicant with Major Depressive Disorder (MDD) with generalised anxiety.
The applicant had been treated with Cognitive Behavioural Therapy from which she had benefited. However, she had recently attended in a distressed manner. She complained that her symptoms burdened her ability to undertake employment. This had caused significant financial hardship.
Mr Girgis opined that as the applicant suffered from depression, it was crucial that she reduce exposure to additional stressors. She would be required to attend fortnightly.
On 20 May 2019, Mr Girgis reported in substantially similar terms.
The applicant was emotional during the assessment, becoming anxious when discussing her return to work and limited functioning due to a degenerative back problem and industry experience.
The applicant presented as anxious/irritable, using humour as a coping mechanism. She reported that given her negative experiences in the past, she was unable to return to the workplace, believing there was a potential for recurrence of her past experience.
Mr Girgis reported that the applicant was certified with no capacity for employment. Her psychological symptoms impacted her daily functioning and capacity to return to work.
Mr Girgis recommended that the applicant not be in an environment that may add to her stress and impact on her health. It was important that she prioritise treating her MDD and PTSD.

Canterbury Community Health Centre

The applicant attended on 17 June 2018 and was discharged on 21 June 2018.
The applicant had presented with suicidal ideations in the context of ongoing psychosocial stressors. She gave a history of being raped by her ex-partner last year. He was physically and mentally abusive.
The applicant denied any paranoid ideations, “IOR”, or thought insertion/broadcast, but reported nightmares and flashbacks of sexual and physical abuse by her mother and uncle whenever she was under a lot of stress.
At times the applicant heard her own voice in her head, telling her she was worthless and useless and should kill herself.
There was a further attendance in February 2022. The applicant had been referred for a mental health assessment due to persecutory delusion against a “former employer” and suicide threats after a dramatic confrontation with this person.
Constable Toweel received a report from “this accused to be former employer”, who noticed he had been followed by the applicant twice in the last two weeks. The police were concerned about her mental state and requested review.
The applicant was noted to have a history of trauma, severe anxiety, and attracted a diagnosis of BPD. She had had a recent admission to PMBC (Professor Marie Bashir Centre).
The applicant had presented to RPAH on 15 February 2022, after being advised by her lawyer to present for a mental health assessment, following referral from police. She was offered voluntary admission but declined and was referred to “ACS”.
ACS had attempted to contact the applicant multiple times, but she refused to engage. Her GP was informed. He had not seen her in the last few months but agreed to receive the discharge summary to place in her file.

Dr Eddie So – psychiatrist

Dr So reported to Dr Prendergast on 24 July 2020.
The applicant had presented with chronic anxiety and multiple musculoskeletal symptoms. Her known diagnoses were PTSD, chronic, with psychotic features; and past Major Depression, including post-natal depression (victim of abuse).
The applicant had recently remarried. Her husband was residing overseas, pending an immigration visa.
The applicant described an isolated existence, and support from her son. She claimed her granddaughter was recently kidnapped and taken overseas, giving her much grief and anxiety. Dr So understood she had reported the matter to Queensland police, and her case was thrice rejected.
Dr So understood that over the years, the applicant had been involved in multiple appeals and made multiple complaints to various local authorities and Federal politicians. She had been supported by her clinical psychologist for the past several years and attended Canterbury Community Mental Health Service until recently.
The applicant was alert, attentive, but preoccupied. She was teary on several occasions. Her speech was coherent, circumstantial, and over-inclusive, fixated with loss, grievances, helplessness, injustice, and perceived victimhood. She was adamant she had never heard “voices”. She had partial insight, admitting to limited adherence with medications.
Dr So recommended medication and continuing psychological support and planned to re-assess the applicant in a month.
Dr So reported to Dr Blair Mulvy on 22 January 2021.
The applicant described a period of increased stress over the holiday period, hard [sic: had] coped without regular support from her psychologist and doctors. She remained troubled by her interpersonal hypersensitivity, lack of trust and proneness to anger.
Dr So found the applicant alert, attentive and engaging. Her mood was stable, without lability. Her speech was coherent and better focused, despite a level of relationship preoccupations. She expressed less grievances and had better insight. She reported good medications and willingness to seek psychotherapeutic support again.
Dr So planned to review the applicant in a month.
On 23 June 2021, Dr So reported to Dr Do.
The applicant described increased stress in recent months, secondary to repeated flooding of her house. She complained of increased anxiety, and a heightened sense of vulnerability and helplessness.
The applicant was alert, attentive and engaging. Her mood was stable, more subdued, without lability. Her speech was coherent. She felt reluctant to speak to the Department of Housing again. There was no relapse of paranoid thoughts. She had average insight and felt safe in the new neighbourhood.
Dr So was to review the applicant in two months.
On 28 October 2021, Dr So reported to Dr Lawendy.
The applicant reported ongoing stress and depressive mood in recent months, coinciding with the extended lockdown.
The applicant complained of chronic anxiety, sadness, heightened sense of vulnerability, and helplessness. In particular, she worried about her children, as they also had mental health difficulties.
Ms Tomaras admitted to depressed mood, loss of appetite, and poor sleep. There was a strong sense of isolation and powerlessness, but recent paranoid thoughts. (Dr So probably meant “no” such thoughts, as he used the word “but”). The applicant had average insight – “I miss my husband very much.”
Dr So was to review the applicant in two months.
Dr So reported on 1 April 2022.
He noted that the applicant had been his patient since 2017. She suffered from depressive symptoms, anxiety, recurrent fearfulness, and paranoid inclinations, together with multiple musculoskeletal symptoms.
The applicant was a victim of abuse and was haunted by recurrent traumatic memories. She stated that her most recent traumatising experience was in May 2021, when she was physically abused by a shop keeper in Belmore.
Dr So diagnosed MDD, with post-traumatic stress symptoms and significant anxiety. These were chronic symptoms.
In the context of the applicant’s chronic mental disabilities, and the risk of destabilisation under stressful conditions, Dr So recommended that she be allowed to be accompanied by a carer and allowed regular breaks so she could go through the court proceedings.
On 8 January 2023, Dr So reported that the applicant was a survivor of child abuse and domestic violence, as well as being assaulted at work recently.
The applicant’s diagnoses were MDD, with relapse of post-traumatic stress symptoms and significant anxiety.
The applicant suffered chronic anxiety and depressive symptoms, with recurrent fearfulness, paranoid inclinations, and behavioural withdrawal, compounded by multiple musculoskeletal symptoms. “Of salience”, she was a victim of abuse (assaulted by her employer in May 2021) and continued to feel intimidated by the employer threatening harm towards her and her daughter.
The applicant exhibited significant fear and helplessness, stating that police had not offered her protection.
Dr So opined that the applicant suffered from a major and chronic mental illness, with significant affective and cognitive impairment, including information retaining and processing, and effective decision-making abilities. Her symptoms posed significant limitation on stress tolerance and global daily functioning.
The applicant was highly vulnerable to relapse and mental instability, especially when required to handle unplanned events, conflicts, and acute situations. Dr So opined that it was highly likely that over the foreseeable two years she would remain unwell, with major functional impairments.

The Holy Family Medical Centre

The records commence on 19 November 2021.
On 26 November 2021, Dr Ehab Joseph recorded that the applicant saw Dr So every month.
On 9 February 2022, Dr Joseph recorded that the applicant was allegedly assaulted by her employer. She reported the abuse to police after five months of working there. The reason for contact was recorded as BPD.
On 5 March 2022, Dr Joseph recorded that the applicant had right shoulder pain. She had been allegedly assaulted repeatedly over five months. She had been punched in the right shoulder and was kicked in the back.
The applicant continued to consult Dr Joseph about her right shoulder, and various other physical complaints.
On 30 May 2022, Dr Joseph recorded that the applicant had been working for 15 hours a day, seven days a week, for nine months. She had pain in her right wrist, shoulders, and neck.

RPAH – PMBC

The applicant had been admitted from 29 January 2022 to 31 January 2022. She had a history as a victim of trauma and a diagnosis of PTSD. She saw Dr So monthly.
As far as the hospital was able to establish, the applicant had not previously required a mental health admission, although she had been referred to community centres after a car accident, and once when she was expressing paranoid ideas. She was not long managed following these referrals.
The applicant was brought in by police after they [were] called by her following a dramatic confrontation with a pizza shop owner. “There was some confusion at the time”, but she stated she used to work there and was bullied and assaulted by the owner.
The police heard the owner and staff say they did not know the applicant, and denied she worked there. “Regardless”, she was in significant emotional distress and had made a dramatic suicidal threat.
On review, the applicant remained emotionally elevated and was making paranoid statements about the government, Scott Morrison, the assessing registrar, and the police. Considerable time was spent with her and in discussion with her brother, to see if she could be safely discharged home, but she eventually asked for a short voluntary inpatient admission, which was agreed to be the best approach.
The applicant was a “high visibility patient” and at times demanding and entitled. However, she was mostly polite and settled, with no instances of uncontrolled emotional outbursts or dysregulated behaviour.
Generally, and on review that day, the applicant had histrionic and dramatic tendencies, with displays of grandiose defence mechanisms. When highly dysregulated, it was easy to imagine paranoia and grandiose ideas being expressed, as was likely to have occurred at the time of presentation.
When reviewed that day, the applicant was able to give a good account of herself. Her narrative was not well organised, and she was overinclusive, but not psychotic. She felt her stay had been restorative, and she felt safe to return.
“On balance”, it was likely that the applicant had been in the community “like this” long term and was only coming to the attention of police as she had developed persecutory beliefs about her former employer. The police were in the process of investigating and were aware of the previous reports but did not think there was a basis to her claims.

The applicant’s health status was “emotionally unstable personality disorder, impulsive type (final)”.

Dr Thurairetnam Sivaruban – psychiatrist

Dr Sivaruban was qualified by the respondent and reported first on 6 June 2022.
Dr Sivaruban recorded a history that the applicant suffered a psychological injury due to verbal and physical abuse by her previous employer. She had started work as a volunteer. She did not get paid for a month and when she asked for payment was paid $120 per week in cash.
The applicant said she had been put under a lot of pressure at work, and the owner started to abuse her from day one. There was initial verbal and physical abuse, and he had once touched her breast.
The applicant reported multiple incidents at work, but it was hard for her to talk about it as it made her emotional and she cried. Dr Sivaruban agreed at her request to just read her statement.
Dr Sivaruban recorded that on 21 September 2021, the applicant claimed that Gabriel had punched her and Suzanne, after they had an argument. He used her backpack to hit Suzanne. After that, Suzanne was fired.
The applicant reported that Gabriel punched her on the shoulder on 17 October 2021, and she took photos of it “as well”.
On 21 November 2021, the applicant was punched by Gabriel in the mouth, on the right. She said she was in pain and shock, and her mouth was swollen and bleeding. She continued to work because she was scared.
The applicant went to Campsie Police Station. Police officers did not want to hear from her, and she showed them photos. They recorded the event but did not take any action. The following day, Gabriel threatened her daughter if she told anyone about the incident.
The applicant continued to work until 5 December 2021 and found it tough. Gabriel punched her again, and she had not worked at the bakery since.
The applicant called triple 0 on 29 January 2022, reported the previous physical and verbal abuse, and advised that the bakery was an unsafe environment.
The applicant had stopped in front of the shop and told Gabriel she would destroy him. He told everyone she was crazy, and the police arrived. She was taken to RPAH, where she stayed for three days.
The applicant was not sure why she stayed so long at the shop, but she felt she was enjoying her job, felt self-worth, but the owner took advantage of her.
The applicant had been told of the likely diagnosis of emotionally unstable personality disorder is [sic: possibly with] an impulsive subtype, which she felt was probably right.
The applicant and Gabriel attended Bankstown Local Court in April 2022 regarding the physical abuse, and the judge [sic] granted an interim AVO.
Dr Sivaruban referred to the RPAH discharge summary and noted the diagnosis.
The applicant reported that she continued to feel on edge, irritable, and always looked through the windows to see if someone was coming to hurt her and her daughter. She felt she could not relax and did not leave her house much. She avoided the shops. She had ongoing bad dreams and nightmares. She had always been hypervigilant.
The applicant reported occasional panic attacks and anxiety. She denied past psychiatric admissions but had seen a lot of different psychologists. There was “deliberate self-harm and OD (overdose), cried [possibly tried] once, and took an overdose 30 years ago.”
Dr Sivaruban recorded sexual abuse in the applicant’s childhood. She once self-harmed in her early life. She went onto the DSP (disability support pension) nearly a year ago due to her mental health issues. Her husband was still in Kuwait because of legal issues, and she blamed the government for not acting fast enough.
The applicant was cooperative and there was good rapport. She spoke quickly, but her speech was otherwise within normal limits. Her affect was emotional and anxious. “I am up and down, nervous and scared.” There was no formal thought disorder or overt delusion, and she denied suicidal ideation. She was oriented to time, place and person, and insight was fair.
Dr Sivaruban noted that the bakery owner denied the applicant’s allegations. It was not in his expertise to comment on the reliability or reasonableness of the abuse claim.

Dr Sivaruban diagnosed the applicant with Adjustment Disorder with depressed mood and anxiety and PTSD symptoms. There was a differential diagnosis of MDD with anxiety and PTSD symptoms. It was probable that she met the diagnosis of an emotionally unstable personality.
The applicant had a history of depression and trauma, had engaged with a psychiatrist since 2017, and had previously seen psychologists. She claimed she was bullied and abused by the shop owner, resulting in the worsening of her symptoms.
The applicant claimed she had been physically and emotionally [abused] and sexually inappropriately touched by the owner of the shop where she worked for nine months. It had been the main contributing factor for the worsening of her symptoms. Dr Sivaruban had not identified any other work or non-work related factors that may influence the success of treatment, recovery and return to work.
Dr Sivaruban provided a supplementary report dated 7 July 2022. He was advised of the factual dispute and asked to assume that the applicant was not sexually, physically, or emotionally harassed as she alleged. In those circumstances, he was asked to opine whether employment was the main contributing factor to her psychological condition or the worsening of her symptoms.
Dr Sivaruban responded that, if he assumed none of the applicant’s allegations transpired, employment was not the main contributing factor to her condition or the worsening of her symptoms.

Dr David Kumagaya – psychiatrist

Dr Kumagaya was qualified by the applicant and reported on 16 March 2023.
The applicant described a series of workplace stressors and incidents involving her manager. Her salary was frequently delayed, and she was regularly paid less than she was owed. She also described inappropriate physical contact, including being asked for massages.
The applicant described an incident in April 2021 when her manager touched her inappropriately and attempted to kiss her, despite her repeated requests to stop.
Ms Tomaras described being the victim of two physical assaults. On 17 October 2021, her manager punched her in the shoulder. On 21 November 2021, her manager punched the left side of her mouth and kicked her rear.
The applicant described the subsequent onset of flashbacks, nightmares, psychological distress at exposure to cues that resembled the workplace incidents, hypervigilance, exaggerated startle response, irritability, concentration difficulties, sleep disturbance, low mood, decreased interest and engagement in activities, difficulty experiencing positive emotions, and avoidance of reminders of the workplace incidents.
The applicant had been unable to continue to work beyond 5 December 2021, and stated she had not been able to return to work since.
Dr Kumagaya recorded no thoughts of self-harm, suicidal ideation, or homicidal ideation. The applicant continued to experience “challenges” with her capacity towards social functioning, travel, concentration, persistence and pace, engagement in social and recreational activities, and employability.
Dr Kumagaya recorded the applicant’s treatment. He noted that she was discharged from PMBC with a diagnosis of emotionally unstable personality disorder, impulsive type. He also noted her prior psychiatric background.
The applicant told Dr Kumagaya that before her work-related injuries, her mental state was stable with the treatment she had received.
On examination, the applicant was cooperative and engaging. There was mild psychomotor agitation but no abnormal movements. Her speech was increased in amount and spontaneity.
The applicant described her mood in enduring dysphoric and anxious terms. Her affect was euthymic with retained reactivity, although mobility / intensity / range were restricted. She denied any perceptual disturbances. Her thought form was at times circumstantial and tangential. Her thought content comprised trauma-related cognitions regarding the impacts her work injury was having on her quality of life. There were no delusional cognitions noted. Her insight and judgment were assessed to be reasonable. Her cognition was grossly intact.
Dr Kumagaya opined that the applicant had not been incapacitated for work prior to 5 December 2021. She had since been totally incapacitated for work.
The applicant’s diagnosis was PTSD, which Dr Kumagaya opined had developed as a result of the work injury. Her prognosis for recovery was guarded.

SUBMISSIONS

The submissions have been recorded and a transcript is available. I will therefore refer to the main points.

Applicant

The applicant submitted there was consensus between the medico-legal examiners that she had a psychological condition. There was consistency between the history taken.
The applicant submitted that she had given evidence under oath that she was hit on the right side of the mouth. There was a contemporaneous record, being the photograph, that showed the injury was on the right side. The statement she made in February 2022 was after she had been hospitalised, so she was clearly in a state of agitation and trauma. It would be quite unfair to suggest that her mistake about the left side should be regarded as damaging to her credit.
The applicant submitted that her evidence about being punched on the shoulder on 17 October 2021 was corroborated by photographs. Clearly there were incidents in the workplace that resulted in physical injuries. The psychiatrists have understood that those factors would trigger a psychological condition.
The applicant submitted that Dr Sivaruban, in his supplementary report, did not retreat from the fact that she had a psychological condition. The respondent did not suggest it was caused by factors that were not work related. There was no alternative thesis to explain the condition that Dr Sivaruban accepted.
The applicant referred to the text messages between her and Gabriel. There were communications that referred to mistreatment, assertions that Gabriel did not adequately dispute. This was an uncomfortable relationship. There was perhaps a pathetic flavour to her submissiveness to an employer who was grossly exploitative and did not honour his obligations to attend to payment.
The applicant submitted that the texts provided work-related evidence of distress that would explain the development of a psychological condition, but there was a lot more, and some very troubling treatment of her. The texts showed her perception of being ill-treated.
The applicant referred to the text sent on 29 November 2021, after she alleged she was assaulted. She submitted that, without the assaults in the picture, there was a very strange relationship between her and her boss.
The applicant submitted that, when she sent Gabriel the photographs of her mouth, he did not contest that. He was dismissive and failed to address or deny the evidence of the assault.
The applicant submitted there was no explanation for having sent the video to Gabriel, other than, as she testified on oath, he was a person who supposedly considered himself a devout Christian, so she sent him a video relating to the way in which the Catholic Church addressed the sexual crimes of its priests.
The applicant submitted that Gabriel’s suggestion that she was not a worker exposed his lack of reliability as a witness. She referred to the text evidence of the work she was performing.
The applicant submitted that the text from Gabriel on 21 November 2021, the day of the assault, was of critical importance. In keeping with this unhealthy relationship, he indicated he would pick her up the next day, having assaulted her, in the expectation that she would be ready to start work early in the morning.
The applicant submitted that in another case, there would be enough to find psychiatric injury in circumstances where an employee was feeling mistreated and not appreciated. She referred to her text in which she said Gabriel thought it was OK to hit and kick her. Her evidence of being kicked in the buttocks was not challenged by the respondent in cross-examination. She gave that evidence in emphatic terms and it appeared in the text on 21 November 2021.
The applicant submitted that she testified with vehemence that Gabriel had tapped her on the breasts and forcefully wanted to kiss her lips and was in obvious distress at re-living the trauma. I would be struck by the force with which she described her sense of mistreatment and disgust.
The applicant submitted that the respondent had no version as to how it was that she would come to have bruises, which were recorded in photographs. I would have no reason not to accept her version. The respondent had no case that this happened elsewhere, or there was any other basis for these physical injuries.
The applicant submitted that the respondent had not provided a statement by Bob to refute what she said about her conversation with him. She referred to Ms Pham’s evidence, that of an independent witness who confirmed what we know from the photographs. Ms Pham observed that she had an injured or bruised lip and was crying. That is consistent with her evidence.
The applicant submitted that something had obviously happened, as it was enough for her to go to the police station. There was again material contemporaneous evidence consistent with her account of the assault.
The applicant submitted that, if her version of being assaulted was false, the respondent would tender the video to show that nothing had happened. I could draw the inference that it would not have assisted the respondent.
The applicant submitted that there was a multitude of stressors, which both forensic psychiatrists have used as the foundation for their opinions. It is quite clear what caused her condition.
In reply to the respondent, the applicant referred to Dr Sivaruban’s evidence, submitting he was aware there was a previous psychiatric history. He opined there were no other factors that may influence her treatment, recovery, and return to work. There was no medico-legal support for the submission that I would not accept anything she said because of her previous condition.
The text messages made clear assertions about abuse and mistreatment. They were not confined to assertions of assault, but related to a variety of respects in which the applicant did not feel respected.
The applicant referred to the photographs as “the elephant in the room”. She did not suggest that the bruising on her arms occurred on 21 November 2021, but it was recorded on 17 October 2021. They were real events. She had a bruised arm. There was nothing from the respondent as to how that occurred.
The respondent had attacked the applicant’s credit on the basis that she had a psychiatric disorder and had been treated for PTSD and psychotic behaviour. The bruises on her arm were not a manifestation of a psychosis and were a physical injury. She said it was done by Gabriel, and submitted that without an alternative explanation, I would accept her version.
The applicant submitted that, likewise, there were photographs of her mouth on the day she said she was punched, on the day she went to the police. There was nothing from the respondent as to how that would be explained. The bruise was a real event. It was not a figment of her imagination. There was no alternative thesis.
The applicant submitted that, obviously, Gabriel would deny the allegations of sexual assault. She had given evidence about a time period and could not be expected to record dates with precision. It was not possible to take a picture of the psychological trauma of being sexually abused. The punching of the shoulder was consistent with her evidence and the bruising.
The applicant referred to her evidence and that of Ms Pham about the “undisputed episode” on 21 November 2021. Ms Pham’s statement of 11 May 2022 was unequivocal. There is uncontested evidence that the applicant was crying. The question was “why?”
The respondent sought to rely on Ms Pham’s subsequent statement, in which she again said the applicant seemed upset, was crying, and had said Gabriel punched her. She submitted the contemporaneous record of being punched was repeated. Even had she not been punched, she was upset and crying, which is evidence of emotional distress, consistent with adverse treatment by her employer. She submitted that this provided a foundation for a diagnosis that two psychiatrists have provided.
Ms Pham’s evidence was inconsistent in that in her second statement she said she could not see any injuries on the applicant. The applicant submitted that we do not know the circumstances in which she ended up with the police, the extent to which she felt vulnerable, or whether she was influenced. However, her earlier statement confirmed she could see that the applicant had been assaulted, and regardless of what she could see, the photograph told us the applicant suffered an injury to her mouth on that date.
The applicant submitted that the subtext of Gabriel’s text message was consistent with an admission that something had happened that was upsetting. The texts over time indicated a multifaceted array of stressors that had contributed to her increasing stress and decompensation.
The applicant submitted that, notwithstanding her psychiatric past, she was able to work consistently for the respondent until the time the abuse reached the stage where she announced she was leaving. She discharged an obligation to end her employment not immediately, but over a period of six weeks.
The applicant submitted that Dr So had been treating her since 2017. He had a proper history and was aware of her fragility.
Ms Hanna’s evidence that the applicant was abusive had no bearing on whether she was abused. Plainly, Gabriel was angry, hence the manner in which he confronted the applicant, and on the same day as the assault, indicated he was sorry. It was clear she was on the receiving end of something. The photograph told me how bad it was, but it would certainly be regarded as an adversarial event, which explained the distress she expressed that day and in the days following.
The applicant submitted that, if what she put in the text messages to Gabriel was unfounded, he would be expected to have contradicted it, but he had not done that. She referred to the respondent having agreed PIAWE of $700 per week, and Gabriel’s false assertion that she had never been an employee. There was a complete lack of credit at the foundation of the respondent’s case.
The applicant submitted that if I had to consider the factual dispute between her account of the workplace and Gabriel’s account, I would have no difficulty in preferring her version, underpinned by the photograph and the text messages.
The applicant submitted that it is not correct that a number of people have denied her version. There was just a standard, “I know nothing, I didn’t see anything.” It is not surprising that all they have done is not to provide evidence that was contrary to the employer’s version. Assuming it is true that none of the witnesses saw Gabriel being abusive, that did not get around the evidence of a bruised lip on the day she said she was assaulted. There was also Ms Pham’s first version, which corroborated that of the applicant.

Respondent

The respondent submitted that the applicant’s evidence as to the allegation of sexual abuse was inconsistent, and specifically denied by Gabriel. He had also denied punching and pinching her shoulders, or that there were arguments.
As regards the incident on 21 November 2021, the respondent submitted that this was traversed by Gabriel. Ms Pham gave evidence that neither she nor Bob observed Gabriel punch the applicant and had not seen him assault her at any other time. Shamoun gave similar evidence.
The respondent submitted that a fair reading of the text messages between the applicant and Gabriel did not add an admission of assault. His evidence was that he apologised because she thought he had not supported her against the customer, which was vastly different to admitting the alleged assault. He had specifically denied making threats against her and her child.

The respondent referred to the police evidence that employees advised they had never witnessed Gabriel assault the applicant or any other employee. Ms Hanna denied witnessing, or being the victim of, assault by Gabriel. The applicant was unable to explain to the police why a photograph of a bruise on her chest was dated 14 December 2020, before her employment with the respondent.
The respondent referred to Ms Pham’s second statement, submitting that there was a direct contradiction to some of the evidence on which the applicant relied.
The respondent submitted that there was little or no contemporaneous evidence before November 2021, when the applicant was in the hands of numerous doctors, of the problems she was allegedly having. Not only was this the case, but she had had extensive psychological problems in the past.
The respondent submitted that Mr Girgis had recorded in January 2021, two months before the applicant started work with it, that she had psychotic features. It submitted she was having paranoid thoughts and delusions in relation to other people, whether they be the authorities or otherwise.
The respondent submitted that I would not be confident that the applicant, with a significant pre-existing psychological condition, would be able to give a correct history. Dr Girgis again diagnosed psychotic features in June 2021, and paranoid thoughts in October 2021, with a diagnosis of PTSD, chronic, with psychotic features. There was nothing recorded that related to employment.
The respondent submitted that with that diagnosis and the record of paranoid thoughts, I could not accept the applicant’s version of events when compared to the multitude of people who had denied it. I would have no confidence in accepting her evidence, relative to the other evidence, including comments from the police. There was no evidence that any of her criminal proceedings had been successful.
The respondent submitted that when the applicant was taken to hospital in January 2022, the ambulance record noted that she had visual emotional distress and was paranoid and agitated. The symptoms were similar before and during employment, with no reference to the alleged events that the applicant said occurred. The respondent also referred to the RPAH discharge summary. The applicant’s psychologist and GPs had thought she was bipolar or schizophrenic in the past.
The respondent submitted that, when this is all put together, there was someone who was very troubled before employment, and continued to be troubled during employment, with no reference to the cause being related to employment, or the alleged events relied on. She was referred to as having psychotic features and paranoia, which extended to people completely external to her life, such as political figures.
The respondent submitted that the applicant’s oral evidence was entirely unconvincing. It was very clear that she and Gabriel were facing each other. He hit her with a right hand across the face, but it apparently ended with a bruise on the right side. The respondent submitted I could not accept that account. Despite alleging she was kicked, the applicant relied on photos of bruises on her arms, and having reported it to the police, there was no reference in the statement that in that event she suffered the bruises to her shoulders.
The respondent submitted that the alleged punch in the face was on 21 November 2021 and the pinching appears to have been said to have occurred on 17 October 2021. That the bruising occurred on 21 November 2021 is not supported by the police statements.
The respondent submitted that it was extremely concerning evidence that the applicant could not explain why a photo of bruises in 2020 were said to have been caused by the respondent. It submitted I would not accept the applicant’s evidence that it was caused by Gabriel.
The respondent submitted that, with regard to the applicant’s credit, she had given evidence of working 16 hours a day, seven days a week, without proper breaks, which was completely implausible. She had also said she averaged 15 to 16 hours a week.
The applicant told Dr Kumagaya she had never been admitted to a mental health facility before. The respondent submitted that her previous significant history was relevant to whether I would accept his diagnosis.
The respondent submitted that the applicant’s text messages were predominantly one way. Her interpretation of what was happening should not be accepted. There was no concession by Gabriel or any other employee that she had been assaulted or abused. The fact that she chose to send a TikTok video relating to abuse fitted within her unreliability, rather than validating her position.
The respondent submitted that these were not real events. I could not accept the applicant as a witness of truth; and therefore, I would accept Dr Sivaruban’s evidence that employment was not the main contributing factor. The applicant had been, before and during employment with the respondent, and was now, too affected by a pre-existing psychological condition to accept her evidence.

SUMMARY
Injury

Section 4 of the 1987 Act provides:

“4 Definition of ‘injury’

(cf former s 6 (1))
In this Act--

‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

The applicant claims to have sustained injury by way of disease, or the aggravation, acceleration, exacerbation or deterioration of a disease, deemed to have occurred on 5 December 2021. In my view, if she has sustained injury, it is due to aggravation (which I will use for convenience) of a disease.
It is clear from the evidence of the applicant and the medical evidence that Ms Tomaras had a significant and long-standing psychological condition before she commenced work for the respondent.
The respondent maintained that I could not rely on the applicant’s evidence, and her credit is in issue. I agree with the applicant’s submission that there is also an issue with Gabriel’s credit, given his consistent denials that she was an employee, only to concede employment status in the proceedings I have referred to above. Shamoun had also denied that she was an employee.
I do not accept some of the applicant’s evidence, for example about the hours she was required to work. In my view, that evidence is unreliable. However, that is not a bar to the acceptance of her evidence on other matters.
In Chanaa v Zarour[2], Campbell JA (Bathurst CJ and Tobias AJA agreeing) said:
“However, in the civil law corroboration is not a technical term, or a legal requirement … Rather, the task of the judge is to decide, on the basis of the whole evidence (denials and all), what he or she accepts. In doing that, there is no requirement for the judge to accept the whole of the evidence of any one witness”.
[2] [2011] NSWCA 199.
The text messages in evidence, most of which were from the applicant, disclose what in my view was a strange and troubling relationship between her and Gabriel. In some of the messages, she appeared to assert that she and Gabriel had a close relationship, although he was “cold” towards her, treated her like a sheep or donkey, and did not respect her.
There is a curious absence of texts from Gabriel to the applicant, responding to her complaints. Although it is possible that he did respond, and she has not relied on those responses, it was open to him to place them in evidence or explain their absence.
The only response from Gabriel to the applicant’s text attaching photos of her upper lip and right arm was to advise her that she had forgotten her glasses. He did not ask what had happened, why she was sending him the photos, or whether she needed assistance. In my view, such a response would have been expected, if the photos were simply sent with no context to explain them.
There is no evidence that Gabriel responded to the applicant’s text advising him that she had reported to the police that he had hit and kicked her. It may be that he did not feel it warranted a response, or any response he made may serve to inflame the situation, but, again, there is no evidence from him about this.
The applicant’s evidence that she was assaulted on 21 November 2021 is supported by contemporaneous corroborative evidence. There is both a photograph of her mouth and the evidence of Ms Pham.
I do not believe that the applicant’s apparent confusion about whether she was struck on the left or right side of the face detracts from her evidence. The fact is that there is a photograph showing a mark on the right side of her face.
Ms Pham has made two statements. In my view, the earlier statement, being more contemporaneous to the events about which she was being asked, is more likely to be accurate.[3]
[3] Onassis and Calerropoulos v Vergiottis[1968] 21 Lloyds LR 403 at [143].
Ms Pham initially said the applicant came to her with an injured or bruised lip or mouth, alleging that Gabriel had punched her. She was crying a little. Ms Pham had not seen Gabriel punch her.
In her statement to police, Ms Pham said the applicant came into the kitchen, seeming upset, and crying. The applicant said that Gabriel had punched her. Ms Pham did not see any injuries. Her initial evidence that the applicant had an injury to the lip or mouth is entirely consistent with the photograph and the applicant’s statement.
The applicant reported the injury to the police at the time it occurred, and was given an event number, providing further contemporaneous evidence.
There is no other logical explanation for the applicant’s visible injury. Neither Gabriel nor Shamoun suggested that she had somehow contrived to inflict it on herself between leaving the front of the shop and speaking to Ms Pham. Had that been the case, I would have expected them to take steps to retain the CCTV footage, and to say so in their statements. Shamoun said only that he had not observed Gabriel punch the applicant.
I have had the advantage of observing and listening to the applicant give evidence. She was visibly distressed when being asked about events at the store. I did not have the impression she was attempting to mislead, or avoid answering questions, but rather that her distress was affecting her ability to give evidence in a coherent manner.
There is no doubt that various medical practitioners have at times recorded that the applicant had psychotic features or paranoia. However, Dr So has treated her since 2017. As she submitted, he had a proper history and was aware of her fragility. He accepted that she had been assaulted and did not express any opinion that she may have been mistaken because of psychosis or paranoia.

480.Neither the applicant’s nor the respondent’s independent medical examiners, each of whom was aware of the applicant’s history, expressed the opinion that her complaints were due to psychosis or paranoia. Dr Sivaruban recorded no formal thought disorder or overt delusion. Dr Kumagaya noted no delusional cognitions.

I am not able to determine whether the applicant was, as she stated, sexually assaulted, and one would not expect that there would be witnesses to such behaviour, but in my view, the evidence of the text messages, which has not been traversed, establishes that she was exposed to distressing and difficult circumstances in the course of her employment, culminating in the assault on 21 November 2021, which resulted in her decomposition and injury.
I am satisfied on the evidence that the applicant did sustain injury, due to aggravation of a disease.
In order to succeed in her claim, s 4(b)(ii) of the 1987 Act requires that the applicant establish that employment was the main contributing factor to the aggravation of the disease.
Deputy President Snell discussed the definition of “main contributing factor” in AV v AW.[4] After discussing the authorities, he provided the following summary:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor. The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.” (at [77]-[78])
[4] [2020] NSWWCCPD 9 at [65]-[78].
While Dr Kumagaya did not specifically opine on “main contributing factor”, his report taken as a whole supports the proposition that employment was the main contributing factor to the aggravation of the applicant’s disease.
Dr Sivaruban reported that the abuse of which the applicant complained had been the main contributing factor for the worsening of her symptoms. He had identified no other factors that may influence her treatment, recovery, or return to work.
In providing his supplementary report, Dr Sivaruban was asked to assume that the applicant was not harassed as she alleged. On that assumption, he opined that employment was not the main contributing factor. However, in my view, that assumption is not correct.
I am satisfied that the applicant’s employment was the main contributing factor to the aggravation of her psychological disease. She has therefore established that she has sustained injury arising out of or in the course of her employment.
I determine that the applicant sustained injury arising out of or in the course of her employment, pursuant to s 4(b)(ii) of the 1987 Act, deemed to have happened on 5 December 2021.
The parties agreed that, if the liability dispute was determined in favour of the applicant, the matter would be listed for further preliminary conference, when directions would be made with respect to determining the claim for weekly benefits and medical expenses.
The order is as set out in the Certificate of Determination.

[2023] NSWPIC 615

15 November 2023