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Article Link in SMH:   

https://www.smh.com.au/national/nsw/nsw-police-lose-appeal-against-employee-who-was-allegedly-raped-20211109-p5979d.html

 It is alleged that Ms Nguyen, a Principal Executive Officer with NSW Police, was sexually assaulted by a colleague during a farewell for a detective superintendent on 20 December 2019. Ms Nguyen was obligated to report the assault to her employer and had to participate in a lengthy investigation process. 

After reporting the alleged assault Ms Nguyen was essentially demoted when she was transferred to premises at Woolloomooloo, while the perpetrator remained working at Parramatta HQ. The tasks allocated to Ms Nguyen in Woolloomooloo were outside her normal duties and her colleagues working at the premises were injured in one way or another. Ms Nguyen felt that Woolloomooloo was essentially a “dumping ground” for injured workers. She was twice offered to return to Parramatta HQ but after accepting these offers, the offers were withdrawn. 

During the arbitration on 2 December 2021 we successfully argued that Ms Nguyen’s employment between 4 February 2020 to 5 July 2020, including the demotion and transfer, was the main contributing factor to the aggravation and exacerbation of Ms Nguyen’s psychological injury. The claim was not made on the basis that the farewell was a work function and the sexual assault caused injury, but that the treatment by the employer subsequent to the assault aggravated her condition.

The employer appealed the decision on two grounds. Firstly, that the Arbitrator erred in law and fact by finding there had been an aggravation injury and secondly that the worker’s incapacity flowed from the aggravation injury rather than the sexual assault on 20 December 2019. 

The employer sought to rely on fresh evidence including a statement from Assistant Commissioner Fitzgerald, the worker’s boss. 

On 20 October 2021 Deputy President Snell determined that both grounds of appeal failed and refused the employer’s application to rely on fresh evidence. He confirmed that the Arbitrator’s finding that there was an aggravation finding available on the evidence overall, particularly considering the opinions provided by Dr Takyar and treating psychiatrist Dr Bennett.

The determination of Arbitrator Rachel Homan was confirmed.