The man was employed by a labour hire company providing security services. He’d been working as a security rover at a large shopping mall in a Sydney suburb for 18 months, when a robbery occurred overnight at one of the retailers in the mall.
When the police contacted security, they realised the CCTV cameras had not been recording between 10pm and 3am on the night of the break and enter.
The security guard was accused of using the operations manager’s login credentials to change the recording times on the CCTV and being complicit in the robbery, but because the camera in the office was not working, this could not be verified.
However, a security camera outside the door to the office had recorded the security guard and another worker entering the office in the relevant time frame. They denied tampering with the system – they often went into the office for various reasons but did not go near the cameras unless they had footage to look at.
At first, he did not believe he was in any trouble because he’d done nothing wrong, but later he received a message that he and the other worker who’d entered the office would be stood down with pay for a week.
He subsequently had an opportunity to check the footage and saw that he’d walked in and out a few times and had been in the office during some of the relevant timeframes, but always in the company of a co-worker. He told his supervisor he did not understand why he was accused.
Nevertheless, he was later told he could be deployed at a different site, but he declined the offer, telling the manager he’d wait until after the internal investigation as he knew he had not done what they were accusing him of.
He was suspended, and in due course informed that the shopping mall’s risk committee had withdrawn the allegations as they could not be substantiated, but deemed him an ongoing risk and instructed the security company to permanently remove him from the site. He was ‘gobsmacked’.
Through friends on the security team, he learned that technicians had been hired to look at the cameras and found that the gap in CCTV recording was a system error, not the result of anyone tampering with the cameras.
Despite this finding, he did not receive an apology or acknowledgment of harm, and the security company said it needed to comply with the shopping mall’s direction to remove him, in order to honour their contract.
The security guard believed he’d been demonised, discriminated against because of his faith, and used as a scapegoat so that his employer could retain the contract with their client, the shopping mall.
He was acutely upset, depressed, and anxious as he’d never been accused of anything like that before, and felt the damage to his reputation. He’d been deemed ‘a risk’ with no evidence, and his employer had done nothing except try to move him to a different site ‘like he was a worthless nobody’. He felt that everything was ‘falling apart in his life’, and stopped going to work.
He sought medical advice, as he had trouble sleeping and was too scared to return to work lest he was subject to further unfair accusations. He was diagnosed with adjustment disorder with mixed anxiety and depressed mood brought on by the psychosocial stress of the ongoing psychological affront, and assessed as unfit to return to work.
He lodged a claim for compensation for his depression and anxiety, but the insurer disputed liability, maintaining that the injury was wholly or predominantly caused by his employer’s reasonable disciplinary action.
The security guard then lodged an application with the Personal Injury Commission of New South Wales to resolve the dispute.
In the Commission
The Commission’s task was to determine whether the employer’s conduct in suspending the security guard was reasonable disciplinary action (as per s 11A of the Workers Compensation Act 1987), and also the extent of his incapacity for work.
After considering the evidence, PIC Senior Member Kerry Haddock formed the view that the employer had made no attempt to assist the security guard or advocate for him with their client, or even verify the client’s claims. Instead, the employer had accepted what the client said as ‘gospel’.
She did not accept that the employer’s conduct in suspending the guard was ‘reasonable’, and his psychological injury was wholly caused by the employer’s action in suspending him.
She also accepted that as a result of the injury he had no capacity for work.
She therefore determined that he was entitled to weekly benefits and medical expenses.
What it means for employers
Employers should carefully check accusations of misconduct before taking action against an employee.
Read the decision
Dimian v Millennium Security Specialist Services Pty Ltd [2023] NSWPIC 561 (24 October 2023)
