Applicant alleged that attempts were made to poison her
Allegation of conspiracy by her department management against her
Respondent contended that Applicant refused to admit to mental issues and refused all attempts to assist her with treatment
Source
Original judgment source is linked above.
Catchwords
Unfair Dismissal applicationApplicant alleged that attempts were made to poison herAllegation of conspiracy by her department management against herRespondent contended that Applicant refused to admit to mental issues and refused all attempts to assist her with treatment
Judgment (5 paragraphs)
[1]
DECISION
1Ms Tazra Ary commenced permanent part-time employment at the base level of Technical Assistant within the Pathology Department of Liverpool Hospital on 31 August 2009. She obtained a Bachelor of Science (Biomedical Science) (2007), a Diploma of Health Science (Pathology Techniques) (2001) and a Certificate III in Business Administration (Medical) (2009).
2Her job was to receive specimens and prepare them for machine-based analysis, answering telephone calls, releasing results and receiving and despatching products. Her direct supervisor was Ms Nelly Luk (Senior Scientist in charge of a section).
3In March 2010, the Applicant applied for a position, still as a Technical Assistant but at a higher rate of pay. The successful applicant was a TAFE student. The Applicant felt that it was unfair because the successful candidate was less qualified than her as she had greater experience and obtained three Australian qualifications.
4Prior to the interview, the Applicant was allegedly advised by a colleague in the laboratory that the TAFE student would get the job as "she knows how things work" and that it was important for one to pay money to receive a promotion in that organisation. She also contended that other colleagues had advised her "to be close with Ms Kitchener" (Senior Scientist) "because everything in the Lab is in her hands".
5In October 2010, the Applicant again failed in her attempt to obtain another Technical Officer position. She believed that she was the only Applicant who had not been given results and feedback.
6In November 2010 the Applicant brought to Mr Alvaro's attention what she perceived as irregularities and corrupt practices in the Department. She said he had become angry, threatening and intimidating towards her. She said he had conducted the meeting behind a locked door in his office. She noted a change in his attitude towards her after that and she began being bullied and harassed by some of her colleagues who, hitherto, had maintained a cordial relationship with her.
7The failure to obtain the promotions apparently triggered a complaint being lodged by the Applicant at a meeting with Mr Anthony Schembri, General Manager-Liverpool Hospital (with Ms Luci Caswell, Director Human Resources -Liverpool Hospital, in attendance), on 22 December 2010 of bullying by two co-workers - Mr Frank Alvaro (the Biochemistry Laboratory Manager) and Ms Lynda Kitchener (Senior Scientist in Charge of the Laboratory). In addition, she complained of corrupt recruitment and management practices in the Biochemistry Laboratory on the basis of her belief that one was required to offer bribes to staff members in order to obtain promotions.
8Mr Schembri wrote to the Applicant on 24 December 2010 confirming that the Applicant had provided him with a type written document and a handwritten document which documented her concerns. There was no mention made of any photographs having been provided to him. Mr Schembri advised that Mr Scott Fanker, Cluster Service Manager Mental Health Services and Claire Anderson, Manager Operational Initiatives, had been delegated to investigate her complaint.
9Mr Scott Fanker, Service Manager, Mental Health, South West Sydney Local Health Network commenced an investigation into the complaint on 20 January 2011. In January 2011, the Applicant attended a fact finding meeting with the Service Manager of Mental Health and the Executive Officer of the General Manager's Unit. Following that meeting, she was referred to the Employee Assistance Program (EAP) as it was considered that she was in need of Psychological assistance.
10The Commission was provided with a copy of the transcript of the interview with Mr Wyndham Timmins (Business Manager, Sydney South West Pathology Service) ("SSWPS") by Mr Fanker on 30 March 2011.
11In June 2011, the Applicant, in an alleged attempt to get away from Mr Alvaro and Ms Kitchener, applied for a position as Technical Officer in a different laboratory - Special Chemistry.
12On 9 September 2011, Ms Luci Caswell, the then Director of Human Resources, Liverpool Hospital, wrote to Ms Ary advising that the correct processes had been carried out by management and that the investigation found no evidence to substantiate the allegations she had made. The Applicant was advised that the Respondent considered the matter closed and encouraged her to continue to access the Employee Assistance Program (EAP) which she was already utilising.
13Ms Ary met with Ms Caswell and Mr Chris Patchett (Manager, Employee Assistance Service SWSLHD) with regard to the outcome of the investigation. The above advice was confirmed. In addition, she was advised that the position for which she had applied had been "pulled" due to budget cuts.
14When her request to meet with the General Manager was declined, the Applicant threatened to make a complaint outside of the hospital in relation to the alleged corruption she had observed.
15On 15 September 2011, the Applicant developed severe acute anxiety with shortness of breath, chest pains, nausea and a burning tongue after eating her lunch at work. Believing that she had been poisoned by someone at work, she reported her concerns to a Manager who escorted her to have blood tests which came back normal. She contended that urine tests should have been conducted but no sample was taken. She commenced an extended period of sick leave on 15 September 2011. She exhausted her paid sick leave entitlements on 22 December 2011 and continued to be absent from the workplace on unpaid leave up to her termination on 19 November 2012.
16On 16 September 2011 Ms Ary, accompanied by her husband, attended the General Manager's Unit requesting to speak to Mr Anthony Schembri, General Manager. Mr Schembri was unavailable and Ms Jennifer Arnold, Deputy Director Human Resources, Liverpool Hospital, met with them instead and re-directed them to Mr Timmins as the appropriate contact in relation to the Respondent's service.
17On or about 17 September 2011, still feeling ill with nausea and chest pains, the Applicant presented to Liverpool Hospital Emergency Department where, she claimed, she remained overnight. She contended that a urine sample had been taken on that occasion but the results had not been included in her file because she had sneaked a look at it. She also contended that an attempt had been made to poison her food and she has kept the food in her freezer for testing by the Commission.
18The Applicant contended that a confidential document written on 17 September 2011 above Dr Talbot's signature was placed in her handbag by an unknown person during her admission in the Emergency Department of Liverpool Hospital but she did not discover it until 18 September 2011.
19When the Applicant left the Emergency Department on 18 September 2011, she made her way to the Police Station to report the "poisoning". She noted that her car was being followed by a black car. When the Police advised that they could not assist her, it confirmed in her mind that they had been influenced by a call from Liverpool Hospital.
20The Applicant became concerned when two persons from Mental Health Services visited her home on 19 September 2011. She instructed her son to advise them that she no longer lived at that address.
21On 19 September 2011, the Applicant, her husband and three of their younger children, drove out of their home at 6 am and took their concerns to Parliament House, Canberra.
22The Applicant took two days' annual leave on 21 and 22 September 2011.
23Mr Timmins and Ms Arnold met with the Applicant at 9 am on 23 September 2011. Also present at the meeting was Ms Betty Green the Applicant's support person organised by Parliament House. Mr Timmins provided a copy of the contemporaneous notes he caused Ms Arnold to keep of that meeting during which:
Mr Timmins explained that the meeting had been called to clarify the organisational structure of SSWPS and the chain of command within the service;
Ms Ary kept repeating that her previous complaint had not been finalised;
Ms Ary complained that she had attended to see Mr Timmins the previous week to advise that she was being poisoned by her colleagues in her department but could not get to see him. Mr Timmins was not aware of that;
Ms Ary confirmed that she had reported the matter to the Police but could not provide an Event Number as requested by Mr Timmins;
As the hospitals who employed Technical Assistants were limited, Mr Timmins offered to transfer Ms Ary temporarily to Concord or RPA Hospitals while his investigation was proceeding. Mr Ary declined that offer because of the distance she was required to travel (from Casula). She requested that he attempt to find her employment in a private laboratory but that was beyond his jurisdiction.
Instead, she opted to accept Mr Timmins' offer to take eight weeks' leave and signed the appropriate leave form.
Ms Ary agreed to Ms Arnold's request to release her medical records in relation to the alleged poisoning to assist with that investigation;
Ms Ary complained that while she was out, someone had left a card from the Mental Health Emergency Team at her home. Mr Timmins confirmed to her that the Respondent had not referred the matter to that unit.
Ms Ary requested that if Mr Timmins needed to contact her during her period of leave, that he do so via Ms Green.
24On 21 October 2011, the Applicant lodged a complaint with the NSW Anti-Discrimination Board alleging discrimination in her employment on the basis of race and the Applicant's ethno-religious background. The upshot of those proceedings was a determination by the President of that Board that the complaint was lacking in substance.
25The President, at the request of the Applicant, referred the complaint to the Administrative Decisions Tribunal (ADT).
26In the interim, the Respondent determined that a review of the Applicant's employment was required based on the following:
the Applicant had been on sick leave since 15 September 2011;
the conclusions arrived at by Dr Allnutt;
the absence of any change in the Applicant's views concerning her workplace;
the lack of any indication that the Applicant was participating in any treatment or was prepared to seek treatment;
the fact that the Applicant was unable to fulfil the duties of her substantive position. It was considered appropriate to ask her to show cause why her employment should not be terminated.
27On 12 October 2011, the Applicant wrote to the Honourable Julia Gillard, Prime Minister of Australia, making further allegations of corruption in the recruitment processes of Liverpool Hospital.
28The Applicant lodged a workers' compensation claim in January 2012 citing psychological injuries as a result of her alleged poisoning in the workplace. That claim was declined on 20 January 2012 on the basis of a factual investigation and independent medical examination which found that the Applicant was suffering from an underlying mental health disorder not related to her work.
29The Applicant wrote to The Hon Jillian Skinner MP, Minister for Health, regarding her corruption allegations. As a result of that correspondence, she received a letter from Mr Anthony Schembri, General Manager, SWSLHD, on 17 January 2012, advising that the Hospital viewed the issues she had raised with the Minister as serious matters and that an investigation into the circumstances surrounding those issues would be conducted.
30The Applicant received a response from the Minister dated 13 February 2012 declining to meet with the Applicant due to her parliamentary commitments. Nevertheless, the Applicant was advised that her concerns had been forwarded to Ms Amanda Larkin, Chief Executive, SWSLHD for review. The Applicant was advised that the Minister's enquiries had revealed that the Internal Audit Department of the Local Health District was conducting a review of the Applicant's concerns and will work with Liverpool Hospital to address the issued she raised in her letter.
31The further investigation by Human Resources conducted into the Applicant's allegations concluded, on 23 March 2012, that the allegations were unsubstantiated.
32As a result of that finding, Mr Rudy Angulo (Network Manager, Pathology) (Mr Timmins' 2IC) wrote to the Applicant on 23 February 2012 advising that she was required to attend an appointment on 9 March 2012 to undergo an independent medical assessment by Dr Lana Kossoff to assess her ability to perform the inherent duties of her position as a Technical Assistant in the Department of Clinical Chemistry, SSWPS.
33The Applicant failed to attend that appointment citing ill health as the reason. Further attempts made for her to attend the medical assessment also failed.
34The Applicant went to see Mr Chris Hayes MP, Federal Member for Fowler, on 10 April 2012 resulting in Mr Hayes writing to the Minister for Health on her behalf. The Minister responded to Mr Hayes on 28 May 2012 and Mr Hayes wrote to the Applicant on 7 June 2012 confirming that the Minister's investigations had revealed that due to the lack of evidence, her concerns as well as her workers' compensation claim could not be substantiated.
35The Hon. Jillian Skinner MP, on 28 May 2012, referred the Applicant to meet with Mr Anthony Schembri regarding her situation.
36Finally, on 21 August 2012, the Applicant attended an independent clinical evaluation by Dr Stephen Allnutt, Forensic Psychiatrist, who provided a report on the same day. Dr Allnutt provided details of what the Applicant had told him, including:
[2]
THE EVIDENCE
51The Applicant's statement in the proceedings was in the form of a letter to Mr Anthony Schembri offering to assist to unveil the corruption which the hospital found difficult to substantiate according to its advice to the Minister. She stated:
... I agree that without my involvement it is hard to be substantiated because I do have witnesses in the hospital, as well as photos and other documentations.
....
Unfortunately the hospital was continuously dishonest with me and this made me not to trust the hospital and record everything for my safety purposes.
52The Applicant disclosed that the colleague who had alerted her to the corruption in appointments was Mrs Hannah Siwan: "If I want to be promoted I have to work within the group, Ms Lynda Kitchener (senior scientist) is the head of the group, she is in charge of the finance in the lab, also she is above Mr Alvaro, Ms Kitchener tells Mr Alvaro who to be picked to be promoted and who to be sacked from the job". She said Mrs Siwan told her that there was no promotion based on qualifications or experience in that lab and what she (the Applicant) needed to do was to join the group and get close to Ms Kitchener.
53The Applicant did not call any witnesses to give evidence on her behalf despite the fact that she stated, during re-examination of herself, that she had "lots of witnesses". The Applicant wanted Mr Schembri to be present to give evidence but had not summoned him to attend to give evidence.
54She pleaded for the matter to proceed further as she wanted the matter "to go to Court". When she was advised that these proceedings were the end of the line, subject to appeal rights, the Applicant asked for further hearing dates. The request was declined.
APPLICANT: Please, let this go to the Court... Because there's something dangerous happen, please. This is a criminal issue, please.
COMMISSIONER: Ms Ary, Ms Ary, you don't seem to understand. You've been for conciliation. At the end of the conciliation proceedings, they were adjourned to allow you to finish a matter somewhere else. You decided to come here. The directions were issued. That's the time when you bring all your evidence, all your witnesses, statements from them and you bring them to the Commission here today to give evidence on your behalf. That hasn't been done.
APPLICANT: I can do it, please provide me another day.
COMMISSIONER: It's too late, this is the hearing today.
.....
APPLICANT: Okay. Before we go any further, would you believe the problem will be solved?
COMMISSIONER: I'm going to issue a decision, you said one way or the other?
APPLICANT: Please, I want it to be solved. If it's not solved I have to go somewhere else. Maybe you can find me in the Parliament House. Where can I go? The health minister--
55The Applicant stated that she had believed and trusted Mr Schembri when he asked her, on 22 December 2010, to return to work while he did something about the corruption about which she had supplied him with photos, documents and hand-written notes. She said the hospital had not involved her in the investigation. Rather, it had worked on ways in which to accuse her of mental illness in order to cover up that corruption.
56The Applicant stated that during the period January to September 2011, she was subjected to harassment by her colleagues, on the instructions of her work manager, Mr Alvaro, because she had taken the matter up with Mr Schembri.
She said that when paper was thrown at her, Mr Alvaro busied himself with the phone and acted like he had not noticed. When she questioned why the paper was thrown at her, the work colleague, Danielle, replied that if she had not thrown it, she would have been in trouble with Mr Alvaro.
Blood taken from a patient in theatre was forwarded to her for testing. She said a work colleague hid the sample from her. She received a telephone call from the doctor about 5-6 hours later shouting at her because the results were not available.
57The Applicant contended that her work colleagues, during the period January to September 2011:
stopped communicating with her and treated her like a mental patient;
hid blood specimens from her in order to put her in trouble;
on her behalf, posted/faxed patients confidential results to the wrong doctors and wrong addresses; and
threw rolled up paper at her allegedly on the instructions of Mr Alvaro.
58The Applicant contended that she was so panicked as a result of Mr Alvaro standing behind her and shouting at her that, on 22 March 2011, she cut her left index finger with a glass pipette contaminated with neurotoxin solution. The Commission was provided with a medical certificate in which antibiotics were prescribed for the injury.
59On 20 January 2011, Ms Ary had issued a grievance against certain people. Mr Fanker was charged with investigating the issues she had raised. Mr Timmins was interviewed as well as all the staff and the Applicant herself.
60On 9 September 2011, Ms Caswell wrote to the Applicant advising that the complaint had been investigated, lacked substance, and was closed. The Applicant did not believe that the investigation was fairly conducted and therefore she did not sign it. The Applicant argued against the closure.
61The Applicant contended that just a week after that meeting, on 15 September 2011, while she was eating her lunch in the lunch room, she felt a burning sensation in her mouth all the way to the stomach, a sharp pain in the chest and left arm and increased heart beat. She said she reported the incident to Messrs Timmins and Schembri on the same day.
62As a result of the alleged poisoning on 15 September, she was admitted to the Emergency Department of Liverpool Hospital on 17 September 2011. She later discovered that the lab problem she was encountering had been leaked to the staff in the Emergency Department. She made the following allegations:
Despite the fact that blood and urine samples were taken for examination, the urine sample results were missing;
She had proof, which she obtained about three months' later, that she had been admitted and stayed overnight but the records indicate that she had been a "visitor";
She stopped a nurse who was attempting to use a defibrillator when her heart was beating fast. It is only supposed to be used when the heart is not beating or about to stop beating.
When the nurse complied with her direction to remove the intravenous needle in her arm, the nurse gave her "wet" cotton wool to put over the needle prick in order to apply pressure to stem any blood flow. The Applicant said she used her thumb instead.
63The Applicant contended that she had not realised that her lunch was poisoned at work until she read the note that was inserted in her handbag on 18 September by an unknown person in the Emergency Department. She pointed out that the CCTV cameras operate round the clock and the footage was available as well as the record of her admittance on 17-18 September 2011. She demanded that the person who wrote the note should be presented to the Commission because of the contents of that statement and the fact that she had not consulted any Doctor Talbot.
The Applicant stated that she had the original of the "Talbot" paper in her possession. She did not provide the original nor did she bring it to the Commission with her for fear of losing it. She said it had been folded about five or six times and left in the back zippered section of her handbag.
64On 19 September 2011, two individuals who claimed they were from Liverpool/Fairfield Community Mental Health Emergency Team came to her house asking for her. They left a calling card. She claimed that her son became frightened. She and her husband and three of the younger children drove to Parliament House in Canberra because of this perceived threat by the hospital.
65Ms Ary was concerned that she cannot visit Liverpool Hospital as a patient as a result of what had transpired.
66The Applicant pointed out that her support person, at the meeting with Mr Timmins on 23 September 2011, was organised by Parliament House. Her understanding from that meeting was that Mr Timmins would investigate the 15 September incident in the laboratory and order tests for her to determine the cause of her illness on that day. Instead, Mr Timmins sent her off work for a period of eight weeks' annual leave, stopped her pay in December 2011, refused to allow her to return to her permanent position and prevented her workers' compensation claim from being accepted on the basis that she had mental issues.
67The Hon. Jillian Skinner MP, on 28 May 2012, referred the Applicant to meet with Mr Anthony Schembri regarding her situation. The Applicant contended that she tried on numerous occasions, during June-July 2012, to make appointments to meet with him but his staff passed on a message from him to meet with her lab managers to resolve the problem. She said she had a record of the two occasions that happened.
68The Applicant said she was forced to meet with psychiatrist, Dr Stephen Allnutt, in order to achieve a return to work. The Applicant requested that Dr Allnutt attend the proceedings to confirm whether the report attributed to him was indeed written by him or by the Respondent.
69The Applicant contended that she had two support persons plus her husband at the meeting on 5 September 2012, in order to thwart any effort by Liverpool Hospital to tell the Minister for Health any untruths. Mr Fenech had promised, at that meeting, to offer her alternative employment outside of the hospital within two weeks. That offer was not forthcoming. She said she kept a taped record of that meeting.
70The Applicant also contended that Mr Timmins had promised her another position in the presence of her support person, Ms Betty Green (Manager, Liverpool Women Health Services), and the Human Resources representative who was taking notes, Jennifer Arnold, but that, also, had not been forthcoming.
71She further contended that she had been forced by Mr Timmins to consult Dr Allnutt. She had also kept a taped record of that consultation.
72The Applicant said that she had kept the remaining food from 15 September which she ate from while at work as well as the food she was provided with in the Emergency Department at Liverpool Hospital during her admission on 18 September 2011.
73The Applicant alleged that a nurse, as opposed to a doctor, had used a defibrillator when she was tachycardic indicating to the Applicant that there were bad intentions against her the night of 17-18 September 2011 particularly when the discharge papers indicated that she had not been admitted when in fact she had been.
74The Applicant contended that the person who accused her of having a mental illness was the same person who was involved with her poisoning.
75The Applicant was seeking to be involved in the unravelling of the corruption she had disclosed and would make herself available to assist.
76The Applicant was seeking the following outcome from these proceedings:
[3]
SUBMISSIONS
84The Applicant submitted that she has been hurting, mentally and emotionally, over the last nine months as a result of what had transpired at her work. Her distress has affected her family for the past two years, including her brothers overseas. Her five children have been distracted from their studies and from their work. Her family has been disadvantaged financially as her children all study in private colleges and she has to pay their fees, including the fees she has incurred in relation to the course she and her daughter are currently undertaking.
85She said she has managed to get by with support from her husband and her children. Her children are helping her with the cooking and cleaning and with payment of college fees. Her older son and daughter both work in addition to being students.
86The Applicant is seeking her urine test results as the various tests she has undertaken over recent months have not revealed any medical problem. The Applicant is seeking that the Commission order medical tests be carried out on her to analyse what is wrong with her. It was also submitted that the Commission order that the food samples she kept be analysed for contamination in order to put her mind at rest as to whether she is safe and that way she will not spend the next five years or so worried about what is going to happen to her because of the pain.
87The Applicant is also seeking an apology from the Hospital because she is currently paying the price for the Respondent's mistake.
88The Applicant explained that the reason she went to Parliament House, Canberra was because she did not feel that her life was safe after the Mental Health Unit visited her at her home. She reasoned that the Police would not listen to her and her lawyer told her the whole thing was too dangerous and, therefore, what could she do and where could she go? She said she had no choice but to pack up herself and three of the kids at 6 am and proceed to Canberra.
89The Applicant explained that
...I already had tachycardia, my heart was beating fast and the nurse came to bring defibrillator. The fibrillator is the machine only used for patient when they have car accident or the heart doesn't work to give them electric shock. My heart is already beating. Once I knew I said please 'What are you going to do?' I look at the screen in the back of my side and she was putting all the stickers on my chest. I said, 'Take away from me, I don't want this". So very bad things happen in the hospital.
90The Respondent expressed concern before both the ADT and this Commission that:
It is not in the interest of the Applicant to further engage in the prosecution of legal complaints as the process could be said to reinforce her delusional beliefs and not assist her in dealing with her underlying mental health issues and seeking appropriate treatment.
91The Respondent submitted that the Applicant was terminated for a valid reason - an independent expert assessment conducted by Dr Stephen Allnutt, Forensic Psychiatrist, concluded that she was unable to perform the inherent requirements for the job due to a psychiatric disability. The Respondent took the Commission through the relevant passages in Dr Allnutt's report.
92The Respondent pointed out that the report obtained by the Applicant from Dr Vrjosseck's was essentially consistent with, and broadly supported, the opinion set out in the report commissioned by the Respondent from Dr Allnutt - that the Applicant is suffering from a delusional disorder and that it would not be appropriate to return her to the work place.
93The Respondent terminated the employment relationship for that reason. Upon receipt of that medical report on the Applicant, the Respondent then went through a show cause process after it provided the Applicant with a copy of Dr Allnutt's report. The Respondent also made it clear that it was willing to help the Applicant, particularly in obtaining psychiatric assistance. The response the Respondent got indicated that there was no self awareness or willingness to deal with the issues identified by Dr Allnutt. It was pointed out that the Applicant's thought disorder was apparent throughout the show-cause process and also throughout the process of this application. It was submitted that the Respondent went above and beyond its obligations in holding out the offer of assistance to the Applicant.
94It was pointed out that the Applicant left the workplace voluntarily on 15 September 2011 on extended sick leave and paid sick leave until her entitlements ran out and then remained on unpaid leave until her termination.
95The Respondent pointed out that there is no jurisdiction to provide any sort of "consolation" prize. In summary, the termination is not unfair; it is abundantly clear that reinstatement is completely impractical; both psychiatrists' reports indicate that she has not sought any treatment; and the actions of the Applicant during the proceedings clearly indicate that the belief structures that were the subject of both reports are still very much prevalent in her thoughts. In other words, there is no change in her belief that there is this conspiracy against her which is situated in her previous place of employment. It was concluded that, on that basis, the application must be dismissed.
[4]
CONSIDERATION
96The Commission has before it a very sad and unfortunate case in which the Applicant has worked successfully for a number of years and had expectations, like any other employee, to climb up the ladder owing to her skills, qualifications and dedication to the job.
97It is unfortunate that a colleague chose to plant the seed of doubt in her mind as to why she was unsuccessful in her applications for promotion within the ranks. The colleague could have been more helpful and suggested practical ways and means by which the Applicant could have obtained feedback assistance in relation to her applications in order to put her in a better position for future vacancies that arise.
98It is the seed of doubt that was planted in her mind that caused the Applicant and management to fall out with one another.
99The Applicant has breached the Surveillance Devices Act 2007 by secretly recording a number of meetings she had with representatives from the Respondent. Those recordings were apparently of concern to Deputy President Hennessey in the ADB matter and are of concern to this Commission. The Applicant explained that she thought she had a legal right to use the recording device to secretly record those conversations because she considered that her life was at risk. Nevertheless, to her credit, the Applicant did not seek to tender the recordings in the proceedings as she was aware of the significance of her actions - she merely mentioned them to indicate that she had proof of the authenticity of what she was submitting to the Commission.
100Unfortunately the Applicant was self-represented in the proceedings. Her husband tried to help but both were too emotionally involved in the proceedings to be able to objectively assess the offers made by the Respondent to settle the proceedings. In addition, both were too emotionally involved in the proceedings to be able to objectively assess the strengths and weaknesses of the Applicant's case.
101The relief that the Applicant was seeking (detailed above) was, in the main, unachievable in arbitration proceedings. The Applicant did not appreciate the worth of some of the concessions that she would have been able to achieve in conciliation proceedings.
102It is very unfortunate that the Applicant did not seek to be represented at the hearing. I note that Bishop C had explained in detail to the Applicant what was involved in conducting an arbitration. Unfortunately, there was no concrete evidence before me of any of the matters the Applicant wished to prove. There was no statement per se from the Applicant in these proceedings. What was submitted was a letter written to Mr Schembri by the Applicant. There were no witnesses called to give evidence on her behalf. The Applicant submitted that what Dr Allnutt said to her during the consultation was different to what he had written in his report. Dr Allnutt was not called to give evidence and the Commission cannot allow a secretly taped consultation recording to be tendered in the proceedings.
103The Applicant attached a copy of the alleged confidential report by Dr Talbot to her so-called statement. Dr Talbot was not called to give evidence nor was the Applicant's file subpoenaed from the Emergency Department of Liverpool Hospital. It is not an original document. She said she had the original document at home and did not wish to lose it. There is nothing to authenticate the signature as being that of Dr Talbot. Certain words are not legible or have been wiped out. It is not a complete document in that it is obvious the first page is missing. That has resulted in the first line being an incomplete sentence and capable of being interpreted in a number of ways. The Applicant has chosen to believe that the sentence reads that she poisoned herself. It is also capable of being read that she alleged that someone else had poisoned her lunch. That document does not assist the determination of these proceedings.
104I have perused the ED Discharge Referral form provided by the Applicant in relation to her attendance at Liverpool Hospital on 17 September 2011. It does not state, contrary to the Applicant's contentions, that she was a "Visitor". The form merely sets out the "Visit Summary".
105The report indicated that the Applicant asked to stay at the hospital for a week to rest but refused to have a mental health review.
106I do not doubt the Applicant's contention that the representatives of the Respondent's undertook to find her alternative employment. That contention was not denied by Mr Timmins during cross-examination. It would appear, however, that subsequent events, including the psychiatric reports, overtook those attempts.
107I have no doubt that the Applicant is sincere in her belief that she can return to work and work normally with her previous colleagues as I believe she is capable of making a genuine effort to do so. Nevertheless, I do not accept that the working relationship can be restored to what it was prior to the commencement of the whole unfortunate incident of the innuendo.
108In the absence of any written or oral evidence before the Commission proving the allegations made by the Applicant, the Commission cannot find that the actions taken by the Respondent were either unfair, unjust or unreasonable.
109The Respondent had no other choice available to it. I accept that the Respondent went above and beyond the call of duty to assist the Applicant to obtain assistance. Obtaining assistance with a matter that is preying on one's mind does not make one a "mental case" as the Applicant seems to think. If the Applicant had agreed to obtain assistance to deal with the issue that was preying on her mind since missing out on the promotions, the parties may not have reached the point where cessation of the employment relationship was the only option.
110Matter No IRC 1198 of 2012 is hereby dismissed.
[5]
Commissioner
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 June 2013
On or about 16 September 2011, while she was at work and after eating her lunch, her tongue started tingling and she was unable to breath, and experienced palpitations and shortness of breath. She thought someone within the organisation had put chemicals or poison in her food. She had a blood test later that day and the result was negative. She thought that it was probably a chemical that did not show up in blood but would have shown up in urine had she been required to provide a sample on the day;
She was later admitted to the Emergency Department at Liverpool Hospital. She became very anxious because she had put her Manager on notice that she was going to make a complaint outside of the hospital and believed that someone was trying to either threaten or kill her because of her knowledge of the corruption at the workplace. Despite the fact that she was told all the tests were negative, she had collected her urine which was tested by the nurses. Someone told her that there was blood in her urine but when she accessed the hospital records she discovered that the urine test results were not noted. Instead, she found two letters included in her record - one stating the belief that she had poisoned herself and the other indicating that she was not admitted;
She had collapsed and was experiencing palpitations. A defibrillator was used on her. As it was not being used by a doctor, she interpreted it as further evidence of collusion between the Emergency Department and her Manager to either kill her or threaten her so that she will run away from the hospital;
When she left the hospital in September 2011, she took some of the hospital food in her bag for testing. She drove to the Police station noting that she was being followed by another car. The Police advised that they could not assist her and advised her to contact the Ombudsman. She believed that the hospital had influenced the Police to consider her as a "mental" case;
The Ombudsman's office also advised her that it could not act on her complaints;
She had taken steps to bring the matter to the attention of Parliament and was provided with telephone numbers to help her find alternative employment. She had booked an appointment to see the Prime Minister.
Finally, she told Dr Allnutt that she was feeling much better and her health was improving because, as a result of her whistle-blowing and bringing matters to the attention of organisations outside of the service, the hospital was now aware that other people knew of the danger she was in and therefore had ceased harassing her.
37Dr Allnutt made the following findings:
the Applicant was manifesting a number of beliefs relating to a conspiracy involving members of the Pathology department (led by her Manager) and the hospitals associated with it and the Mental Health team conspiring against her to prevent her from disclosing corruption within their workplace;
the belief was triggered after the disappointment of not achieving a position she had applied for and a co-worker convincing her that the environment was corrupt because people could pay to progress their careers. She had become more vigilant of others' behaviours, she had began to perceive the behaviours of others as evidence for, initially, corruption and later, conspiracy.
the Applicant would qualify for a diagnosis of a delusional disorder persecutory type.
the subjective stress she experienced was likely to have caused the symptoms she developed which were consistent with depression and panic attacks. It was probable that the panic attacks were interpreted by the Applicant as evidence of attempts by the Respondent to poison her, a view she maintained up to the time of her consultation with him.
she maintained the ongoing delusional belief of persecution within her prior workplace which was very psychologically distressing for her.
her functioning, in particular with regard to interpersonal relationships and occupational capacity, was impaired.
38Dr Allnutt concluded, as at 21 August 2012, that a return to her workplace would not be in her best interest as it would exacerbate her health problems:
"as a consequence of her incorporating various staff members....into her delusional system, I do not believe she is currently fit to perform the inherent requirements of technical assistant as outlined in the position statement because she is prone to perceive, what to others would appear to be usual activities, as possible evidence for a conspiracy and is at risk of coming into conflict with her co-employees and employers. Thus, at this stage I do not believe it would be prudent for her to return to her pre-existing work environment; it would be difficult to provide opinion on the expected amount of time that she would be restricted from these duties and I would suggest a further assessment occur in six months' time."
39A copy of Dr Allnutt's report was provided to the Applicant on two separate occasions by Mr Rudy Angulo, Acting Business Manager Pathology.
40The Respondent had, in both written communication to the Applicant, and verbally, offered to assist the Applicant in accessing psychiatric assistance.
41At the request from the Applicant made on 30 August 2012, Mr Rudy Angulo and Mr David Fenech, Director Human Resources, Liverpool Hospital, met with her and her husband on 5 September 2012. Also present at the meeting were Mr Colin Timms from the Health Services Union and Mr Ayman, an independent organised by the office of Mr Chris Hayes MP, to act as her support persons. The Applicant continued to allege at that meeting that her colleagues had tried to poison her and that there were conspiracies within Liverpool Hospital regarding her medical treatment and to hide the alleged poisoning.
42By letter from Mr Wyndham Timmins, Business and Operations Manager, SSWAPS Administration, on 6 November 2012, the Applicant was offered assistance in accessing psychologists and psychiatrists through the Employee Assistance Program (EAP). The Applicant was required to provide a written response by 16 November 2012.
43Undated correspondence was received from the Applicant on 16 November 2012 providing reasons why her employment should not be terminated. She advised that she was sent back from Parliament House Canberra with advice to meet and sort the matter out with the Respondent. Ms Ary continued alleging corruption and cover up and offered, on a confidential basis, to assist Mr Timmins by pointing out where the corruption lay.
44The Respondent did not receive any assurance from that response that the Applicant's mental state had improved or that she was able to undertake the inherent requirements of her position or that she was seeking treatment in accordance with Dr Allnutt's advice. On that basis, the Applicant was dismissed in correspondence from the Acting Chief Executive, Ms Tracey McCorker, dated 19 November 2012. The Applicant was advised that the Respondent was prepared to assist her in accessing treatment through the EAP.
45On 3 December 2012, the Applicant lodged a section 84 application pursuant to the Industrial Relations Act 1996 (the Act) seeking relief against her alleged unfair dismissal.
46On 4 December 2012 Deputy President Hennessy of the ADT conducted a hearing as to whether leave should be granted under ss 96 (1) of the Anti-Discrimination Act for the Applicant to have the tribunal conduct a hearing into the merits of her complaint. Deputy President Hennessy adjourned the hearing to 29 January 2013 to allow the Applicant to obtain a second opinion from another psychiatrist.
47Conciliation proceedings before Bishop C on 8 January 2013 were unsuccessful. The Commissioner did not issue directions on that occasion as the Applicant had extant proceedings before the ADT concerning identical issues thereby raising concerns in relation to ss 90 (b) of the Act.
48The Applicant attached a report, dated 21 January 2013, from Alexandra Vrjosseck, Consultant Psychiatrist, who confirmed that the conspiracy beliefs held by the Applicant were of a delusional nature precipitated by a combination of events:
the disappointment and frustration she felt by the failure to secure a higher paid position on three occasions;
the aggravation of her distress by the comments allegedly made by co-workers about what was required of her to secure a promotion;
the subsequent hyper vigilance and observation with increased sensitivity; and
what she perceived as failure of management to take appropriate action was considered by her to be confirmation of her conspiracy theory.
49Dr Vrjosseck stated that the Applicant revealed some limitation/restriction in use of jargon and colloquial English which was not uncommon in those in whom English is not their first language. He opined that the comments by her co-workers were possibly misinterpreted by her limited understanding of local jargon/humour.
50Dr Vrjosseck found that the Applicant is currently functioning well and showed no signs of depression, psychosis or cognitive impairment. He held the belief that she was capable of resuming work for which she was trained. Nevertheless, it was not considered appropriate that she return to her previous environment with its accompanying stresses.
to be reinstated to her permanent position and to be back paid to 15 September 2011. Alternatively, if she cannot be returned to her previous employment then she wants to be paid out to 65 years of age - another 25 years' pay;
to be reimbursed for the medical and associated costs she had incurred as a result of the incident at work (including fees paid to a cardiologist, a respiratory specialist and endocrinologist);
to have summoned to the Commission the person named "Talbot" to inquire as to why he contended that the Applicant poisoned herself;
She wants to know who put that piece of paper in her bag while at Liverpool Hospital Emergency Department;
to have summoned to the Commission to meet with the Applicant both Mr Schembri and Mr Timmins so that the Applicant can make them aware of her situation and to find out from Mr Schembri why the emergency department confidential document was placed in her handbag;
that the Commission arrange for the food she has kept from the Emergency Department to be analysed;
that the lost test results from the urine collected from her in Liverpool Hospital Emergency Department on 17 September 2011 be provided to her;
that Mr Schembri come up with a solution to the problem, as promised, for the period of nine months during which she was hurt mentally and emotionally;
recompense from Liverpool Hospital for failing in its promise to obtain alternative employment for her; for being responsible for her not obtaining alternative employment as a result of the Hospital advising prospective employers of her "mental illness"; and an apology for the unfair treatment she had received both as an employee and as a patient;
reimbursement for the fees she is incurring in undertaking study in Diploma of Dental Technology course plus reimbursement for the fees incurred by her daughter who has enrolled with her for safety purposes - a total of $32,000 each. She considers that her current qualifications are now worthless;
attendance by Dr Allnutt to explain why his written report differed from his verbal discussion with her;
testing for the pain she still feels around the chest; and
an apology from the Respondent and a promise not to cause her problems in the future.
77Ms Ary pointed out that someone with a mental illness would not be able to undertake two courses at the same time like she has been doing.
78The Applicant stated that, despite making many applications, she has not been able to obtain paid employment or work of any type since her dismissal. She was in receipt of sickness benefits for stress. She agreed, during cross-examination, that she was not getting sickness benefits for a physical injury but would not admit that the benefits were for a mental problem.
79Mr Wyndham Timmins, Business Manager, employed by the Sydney South West Pathology Service, gave evidence on behalf of the Respondent. He was in that position in 2012 when the Applicant's employment was terminated.
80Mr Timmins confirmed that he met with the Applicant and her support person, Mrs Betty Green, on 23 September 2011. He agreed that she was offered eight weeks of annual leave. He explained that it was time off to see whether she could be settled down. In the interim, attempts were made to find her suitable alternative employment but those attempts were not successful. Mr Timmins also explained that the Applicant's subsequent actions made it difficult to consider taking her back to work:
A. In that intervening time you went down to Canberra and you, I'm not quite sure what you did, but you shouted or something in the Parliament buildings--
So, you made some sort of statement down there, and from that you were then returned home, and the Commonwealth, I presume somebody in the Commonwealth indicated to the Mental Health team in the Local Health District that they had concerns, and the Mental Health team went to your house.... and they were told that you weren't there, so they left. And these sorts of incidents continued, which made it difficult for us to see how we could move forward when there was events happening that make it very difficult--
81Mr Timmins was not aware of any urine sample being forwarded to Pathology for testing. He pointed out that a lot of spot testing is done in the Emergency Department or in the ward. He recalled that the Applicant approached one of the Pathologists and he wrote out a request for a number of tests to be done on her blood sample. He pointed out that his department does not deviate from what the doctors request and his staff are only allowed to do the tests that are requested on the form. He recalled that there was nothing abnormal indicated on her test results.
A. As I understand it, the release that you signed in my office was for us to look at your results. It was not to provide any further tests on your sample, and that's what we did, we looked at your results just to see if there was anything that indicated---- that you had been poisoned. From the tests requested and the results that we reviewed, there was no indication that there was anything that we had detected that indicated you had been poisoned.
82Mr Timmins advised that the Respondent cannot offer the Applicant her job back and that was not negotiable. He pointed out to the Applicant that, despite her protestations, her qualifications remain perfectly valid but "it is very difficult given the history and our relationships for us to employ you anymore".
83Mr Timmins, during cross-examination and in response to a question from the Applicant as to why the Respondent would not reinstate her, once again offered to settle the proceedings by the payment of monetary compensation (not quantified), the provision of a Certificate of Service which would not include a reason for the cessation of the employment relationship, confidentiality and mutual non-disparagement undertakings.