Citation: Nizamdeen v University of New South Wales [2022] NSWPIC 17 (12 January 2022)

Material facts:

The Applicant, Mohammed Kamer Bilar Nizameden, was employed by the University of New South Wales as a business systems analyst in a full-time position.

On 30 August 2018, whilst at a café at the University of New South Wales, he was arrested by undercover police officers in front of his colleagues and students. The police notified him that he was under arrest for terrorist threats that were written in his notebook.

Between 30 August 2018 and 28 September 2018, he was detained at Goulburn Correctional Centre and placed in solidarity confinement. He was subjected to long hours of interrogation and eventually released on conditional bail. He later had all charges dropped against him on 19 October 2018, when it became evident that his co-worker, Arsalan Khawaja, had framed him.

During his incarceration, the Applicant states that no persons from his employer contacted him which made him feel unsupported and isolated. He subsequently suffered from depression, anxiety, and Post Traumatic Stress Disorder which prevented him from returning to work when released from prison.

The Applicant made a claim against his employer, the University of New South Wales seeking compensation for weekly payments from 28 September 2018 to 14 January 2019 on the basis that he had no capacity for employment due to his psychological injury. He also claimed 19% whole person impairment for his psychological injury.

The issues:

There were several issues to be considered by Member John Isaksen, namely:

• Whether Mr Nizameden sustained an injury arising out of or in the course of his employment with the University of New South Wales, or in the alternative, whether he sustained a disease injury in the course of his employment (section 4(b) of the Workers Compensation Act 1987 ((WCA));
• Whether Mr Nizameden’s employment with the University of New South Wales was a substantial contributing factor to the onset of his injury (section 9A of the WCA);
• If Mr Nizameden sustained a disease injury, whether his employment was the main contributing factor of contracting the disease injury (section 4(b)(i) of the WCA) and;
• Whether the Applicant had no current work capacity between the claimed period of 28 September 2018 to 14 January 2019 as a result of his injury (sections 32A,33,36, and 37 of the WCA).

The Decision

Member Isaksen was not persuaded that the Applicant suffered a sudden psychological change or disturbance whilst he was at work on 30 August 2018. He accepted that the Applicant would have experienced shock and distress during the arrest, however, prefers the evidence of Dr Kumar who opines that his PTSD resulted from being kept in solitary confinement and being branded as a terrorist for a month.

The Member notes that the evidence supports that the Applicant sustained a disease over the month proceeding his arrest. However, an Applicant must establish that his employment was the main contributing factor of contracting his disease injury. Noting that there were several casual factors to the Applicant contracting his disease injury, his employment with the University of New South Wales cannot be said to be the main contributing factor.Finally, Member Isaksen found that there was no working relationship between the Applicant and Mr Khawja, nor with the notebook which would allow for a connection to be made between the work performed by them and the injury sustained by the Applicant.

An award was made for the University of New South Wales for these reasons.

 Lesson for employers

 A key takeaway from this case is that a worker’s employment must be the main contributing factor in sustaining a disease injury. It is not enough that colleagues simply work together for a connection to be made between the employment and the injury sustained.

As in this case, it was held that the Applicant’s psychological injury developed whilst he was detained, put in solitary confinement, and interrogated for weeks and, therefore, outside the workplace.

Further, it is important for employers to note that for an Applicant to be successful in establishing a disease injury, they must prove that their employment was the main contributing factor to the said injury.

Contributor: Sophie McClellan

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.