Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District

Detrimental action

1. As a threshold issue, SWSLHD contended that suspension from employment on pay does not in itself constitute a relevant detriment for the purpose of the statutory scheme. Mr Reitano submitted it was a matter of 'common sense' that suspension from the performance of duties is to the detriment of an employee.
2. Mr Britt submitted that a finding that there has been a 'detriment' is one which must be made by the Commission on the basis of evidence not indirect inferences, to the standard in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2. The only other detriment identified (apart from the suspension per se) is that Dr Janssen must return to work by 1 May 2018 and complete 4 weeks' work as a staff specialist in order to be able to reregister himself. If he is not re-registered he will be unable to continue his s 457 visa and complete his pathway to Fellowship of RANZCP. Mr Britt submitted there is insufficient evidence to support these propositions.
3. SWSLHD relied upon the decision of Newall C in Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 ('Bruce'), which approached the determination of detriment as follows: [18] It will be seen that 'victimisation' within the meaning of s.210 occurs, and only occurs, where an employee suffers a 'detriment'. Unless and until the fact of a detriment having been suffered is established, the operation of the rebuttable presumption in subs. 210(2) is not triggered. The first step, then, is to identify any detriment that may have been suffered by an employee. [19] The finding as a matter of fact that a detriment has occurred is a serious finding. It gives rise to a presumption that the Act has been breached. It is a finding to be made at the civil standard of proof. [20] Of course, it is clear from a comparison of the provisions of Part 1 of Chapter 5 of the Act with the predecessor provisions, which required victimisation to be established at a criminal standard of proof, that the present provisions were drafted with an intention that it be less difficult to establish a circumstance of victimisation. So far as it is relevant, the Second Reading Speech (23 November 1995) makes that express assertion, and as the Full Bench of the Commission observed in Twentieth Superspace Nominees, s.210 is a protective provision and ought be so construed. [21] Nevertheless a finding that there has been a 'detriment' is one which could not be made on the basis of indirect inferences, and certainly not by assumption. Such a finding could only be made on evidence, and in my view a finding that there has been a detriment is a finding of sufficient gravity that the cautionary words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 ought be borne in mind in assessing the evidence, a view that is reinforced by the provisions of s.140 of the Evidence Act 1995.
4. In Bruce, there were six instances of alleged detrimental action by the employer, none of which were found by Newall C to constitute relevant detriment. However the question of suspension from duties on pay did not arise for consideration as Mr Bruce was transferred to a different work location while an investigation was carried out.
5. In the Interlocutory Decision I considered the impact of a suspension in the context of the Commission's power to make orders under s 213 of the Act to advance an employee in their employment, noting as follows: [49] Suspending an employee can have adverse impacts on their employment, even if they continue to receive remuneration during the period of suspension. There may be particular adverse impacts for a professional whose duties require the exercise of skill and judgment, which consequently broadens their experience and expertise and builds their professional reputation.
6. I remain of that view, which is reinforced by authority in the Federal adverse action jurisdiction. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525, Murphy J specifically considered whether a suspension constituted adverse action: [111] Secondly, in the circumstances of this case I can see no reason why I should not infer that there was some deterioration in the advantages enjoyed by Mr Zwart in his employment. That Mr Zwart saw the suspension as causing such a deterioration is plain from his initial refusal to accept it, and his attempt to continue at work despite the advice that he was suspended. That Visy too saw suspension as a measure likely to adversely affect Mr Zwart may be inferred from the fact that in the Policy (set out at [55]-[57] above) suspension was only to be utilised in cases of serious misconduct warranting consideration of summary dismissal. [112] The consideration of whether an action constitutes adverse action should not be limited to an investigation only of how the action affects an individual. To say otherwise would mean that a finding that action by an employer against an employee constitutes adverse action is dependent, for example, on the mental and emotional fortitude of the relevant employee. There is, of course, a place for evidence as to the effects of the action on an employee when determining whether that action constitutes adverse action, but I do not accept that, in the absence of such evidence, the Court cannot reach its conclusion by inference from other evidence. [113] The evidence is that Mr Zwart was required to leave his employment from 9 August until 23 August 2011 and, during that time, he was required to keep all the circumstances of the matter confidential, specifically in relation to discussions with work colleagues. On 8 August he was told of his suspension, and initially refused to accept it. On 9 August he was then provided with a letter of suspension which advised that he was at risk of summary dismissal. He accepted this advice. The suspension meant that he could no longer talk to, mingle with and enjoy the camaraderie of his workmates at work or obtain the satisfaction that work tends to bring. [114] In my view the removal of an employee from their employment against his or her will, even temporarily, will usually be adverse to their interests. To say otherwise would be to deny the benefit one gains from the successful pursuit of activity in a field of expertise. The observation that active employment is a source of more than simply financial benefit is neither new, nor should it be considered controversial: see Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 per Ellicott J; Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at [32] per Kirby J, and Callinan and Heydon JJ at [80]; Quinn v Overland [2010] FCA 799 at [101]- [103] per Bromberg J. [115] I consider that the suspension resulted in a deterioration in the advantages otherwise enjoyed by Mr Zwart in his employment and constitutes adverse action.
7. While the test under the Act is not framed in terms of deterioration in advantages in employment, I consider the principles enunciated by Murphy J regarding the nature of employment and the impact of suspension on an employee's interests are equally applicable.
8. Irrespective of the precise impact of the suspension on his pathway to registration and the steps Dr Janssen did and could take on the pathway separate to his employment with SWSLHD, the suspension has denied Dr Janssen the benefits of successfully pursuing activity in his field of expertise. I consider there is evidence before the Commission that the suspension was and is adverse to Dr Janssen's interests as follows: 1. Dr Janssen sought to challenge the suspension by requesting through his lawyers that the decision be reconsidered; 2. Ms Larkin acknowledged that she rarely suspended an employee; 3. the letter of suspension of 10 August 2017 stated that Dr Janssen was to immediately return all keys, identification badges, work mobile phone and other electronic devices and his computer access was withdrawn; 4. he was directed not to discuss the matter with anyone; and 5. he was offered advice and support through the SWSLHD employee assistance program.
9. Dr Janssen's then-lawyers wrote to the Committee for Specialist International Medical Graduate Education of the RANZCP on 11 October 2017, in response to a letter received from them dated 4 October 2017 (which was not in evidence). The 11 October letter discloses that after a period of absence from work due to illness, Dr Janssen was suspended by SWSLHD. It further states that Dr Janssen was 'deeply disappointed that events have conspired to delay his completion of the pathway. He remains committed to finishing all elements of the pathway as soon as possible.' He asks that if the relevant Committee was considering termination of the pathway, he be given an opportunity to make submissions and provide evidence why that should not occur. He requested the Committee grant him a break in comparability status until 1 May 2018.
10. Dr Janssen has not been in his workplace performing his professional duties since being suspended some 8 months ago. I find that the suspension, without more, constitutes detrimental action by SWSLHD. On the basis of this finding it is unnecessary for me to form a concluded view on the precise nature and extent of obstacles the suspension presented to completion of the pathway. However the fact Dr Janssen needed to engage in correspondence with the RANZCP as set out above relating to his pathway is, in my view, further evidence of detriment arising from the suspension.

Relevant law

1. Dr Janssen's case is that a substantial and operative reason that SWSLHD took the Relevant Detrimental Actions was because he raised complaints about workplace health and safety in contravention of s 210(1)(j) of the Act, which relevantly provides as follows: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: … (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011; … (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.
2. Two questions arise for consideration as follows: 1. whether Dr Janssen made relevant complaints under s 210(1)(j); and 2. if Dr Janssen did make relevant complaints, were the complaints a 'substantial and operative reason' that SWSLHD suspended him and did not consider alternatives to suspension during the investigation. This is a question of fact that involves a consideration of the true reasons for the Relevant Detrimental Actions.
3. In the Interlocutory Decision, in the context of assessing Dr Janssen's prospects of success at hearing, I considered whether s 210(1)(j) was capable of application in this matter and determined it was arguable. I referred to the Full Bench decision in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218, which specifically considered the meaning and scope of s 210(1)(j). At the commencement of hearing of this matter, SWSLHD conceded, properly in my view, that Dr Janssen did make complaints falling within s 210(1)(j) of the Act.
4. Accordingly, this matter involves a consideration of the second question only, namely, whether a substantial and operative reason that the Relevant Detrimental Actions were taken was because Dr Janssen made relevant complaints as provided by s 210(1)(j) of the Act, which amounted to victimisation.

Substantial and operative reason

1. Whether the complaints made by Dr Janssen were a 'substantial and operative reason' that SWSLHD suspended him and did not consider alternatives to suspension is a question of fact that involves a consideration of the true reasons for those decisions. Dr Janssen has the benefit of the reverse onus, meaning that SWSLHD must establish on the evidence before the Commission that Dr Janssen's complaints were not a substantial and operative cause of the Relevant Detrimental Actions.
2. Mr Reitano submitted that a substantial and operative reason for deciding to remove Dr Janssen from the workplace by suspending him, and not considering other alternatives, was because he was a 'constantly complaining' employee. Ms Larkin, the CEO and decision-maker, was 'hell bent' on suspending Dr Janssen because he had made claims about workplace issues over a period of months, which was an annoyance.
3. In seeking to rebut the presumption, SWSLHD presented evidence from two witnesses, Dr Oliver and Ms Larkin. They both denied that the Relevant Detrimental Actions were taken because Dr Janssen had made complaints. Rather, they stated the reason was that they considered there were risks of Dr Janssen remaining in the workplace during the investigation, as revealed by a risk assessment.
4. SWSLHD's liability for the alleged victimisation must be determined by reference to the actions of its employees. I consider the evidence of each witness below. It is important to note that in assessing the evidence in these proceedings, the Commission is not concerned with the truth or otherwise of the allegations made against or by Dr Janssen. Further, the issue is not whether the decisions made by SWSLHD were the best or fairest decisions, or even decisions the Commission would make, but whether the evidence demonstrates Dr Janssen's complaints were not a substantial and operative cause of those decisions.

Evidence of Dr Oliver

1. Dr Oliver was not the decision-maker in respect of the suspension. He did however recommend to the decision-maker Ms Larkin that Dr Janssen be suspended. Ms Larkin's evidence was that in making the suspension decision, she 'approved' Dr Oliver's recommendation which was handwritten on the Risk Assessment prepared by Ms Glenda Smith dated 9 August 2017.
2. It was submitted by Mr Reitano that Ms Larkin was the decision maker not Dr Oliver and consequently Dr Oliver's evidence should be wholly disregarded. While I accept that Ms Larkin was the decision maker and her evidence carries the greatest weight, I do not agree that Dr Oliver's evidence is entirely irrelevant in the context in which the decision was made.
3. Dr Oliver said that the information he took into account in making his recommendation was the following: 1. the Risk Assessment document prepared by Ms Glenda Smith; 2. an email which provided information on the declinature of Dr Janssen's workers' compensation claim, including a diagnosis by a Dr Roberts of Dr Janssen suffering an alleged psychological illness; and 3. the risk of a return to work to Dr Janssen and others.
4. I form no view that the medical opinion of Dr Roberts or the declinature of the workers' compensation claim were well founded or correct. They are relevant only to the extent they are matters Dr Oliver says he relied upon in making his recommendation to suspend. In my view they add weight to Dr Oliver's denial that Dr Janssen's complaints formed part of the reasons he recommended suspension to Ms Larkin.
5. Dr Oliver's evidence was that he did not speak with Ms Smith about the Risk Assessment she had prepared, the information upon which she made the Assessment or question her conclusions. He also did not speak with Dr Janssen about the Risk Assessment, nor provide Dr Janssen with a copy of it. He did not inquire whether persons Dr Janssen would be working with if he were not suspended, who were considered to be at risk from Dr Janssen, were still at the workplace. It was not disputed by SWSLHD that the four staff who had made complaints against Dr Janssen were no longer working in the same work area at the time of Dr Janssen's suspension in August 2017.
6. Mr Reitano submitted that this lack of scrutiny of the Risk Assessment and other deficiencies in the process adopted by Dr Oliver was because he had determined to suspend Dr Janssen regardless, as retribution for making complaints, and recommended accordingly to Ms Larkin. I do not consider there is sufficient evidence to establish this submission. Dr Oliver stated it was not his usual practice to speak to the person who was being suspended about the Risk Assessment. As to why he only considered the suspension of Dr Janssen when he was aware there were also complaints by Dr Janssen against other staff that would be investigated, Dr Oliver's response was because it was Dr Janssen who was the subject of the Risk Assessment. He did not consider exploring the validity of the information contained in the Risk Assessment, as this could contaminate the investigation that was going to be conducted into the allegations and counter-allegations.
7. Dr Oliver's actions may not constitute 'best practice' in assessing whether to recommend to the CEO the action of suspending a senior staff member. However the fact that Dr Oliver's decision-making process and recommendation to suspend may be considered deficient does not establish that a substantial and operative reason for the recommendation was retaliation for Dr Janssen making complaints.

Evidence of Ms Larkin

1. SWSLHD's testimony must satisfy the Commission that on the balance of probabilities, Dr Janssen's complaints were not a substantial and operative cause of the detrimental action. Ms Larkin was the decision-maker and her evidence is the focus of the Commission's attention in this regard.
2. In Fire Brigade Employees' Union of New South Wales (on behalf of Wayne Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1024, Stanton C (unaffected by appeal) considered the impact of the High Court decisions in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union and BHP Coal Pty Ltd [2014] HCA 41 as follows: [70] The High Court subsequently found that adverse action had not been taken when the employer dismissed an employee for holding an "anti-scab" sign on a picket line. The employee's conduct was considered lawful industrial activity. A majority of the Court accepted that BHP's reason for dismissing the employee was not motivated by his conduct but rather, by his disregard for applicable workplace policies. The High Court applied Barclay. At [7]-[9] French CJ and Kiefel J stated: The focus of the enquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word "because" in s 346, and from the terms of s 361. The enquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 at 517 [45]; see also at 542 [127]. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1], French CJ and Crennan J observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 without calling direct evidence from the decision-maker as to his or her reasons. The court is not obliged to accept such evidence. It may be unreliable for a number of reasons. For example, other objective evidence may contradict it. However, s 346 does not involve an objective test. In Bendigo, Gummow and Hayne JJ explained that it is misleading to use the terms "objective" or "subjective" to describe the enquiry in s 346. To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker. (references omitted) [71] In the light of BHP Coal, the success or otherwise of an adverse action claim against the employer may turn on the meaning of the words "because of" set out in s 351 of the FW Act where the employer may be in a position to argue that it did not seek to discipline or dismiss a particular employee because of his or her political opinion but rather for breach of a workplace policy or rule. [72] The High Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made. [73] The authorities cited by the parties suggest that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 of the FW Act without calling direct evidence from the decision-maker as to his or her reasons particularly bearing in mind the onus lies with the employer to show that it did not take adverse action for a prohibited reason. [Underlined emphasis added]
3. Direct evidence was given by Ms Larkin as to her reasons for suspending Dr Janssen. In her statement, Ms Larkin sets out the basis for her decision, which was not because Dr Janssen had made a complaint about workplace safety matters, but rather based on the Risk Assessment prepared by Ms Smith.
4. In her capacity as CEO, Ms Larkin reviewed the Risk Assessment that was provided to her and approved the recommendation of Dr Oliver noted on it. Ms Larkin noted that while she was aware of it, she did not have before her the earlier May 2017 Risk Assessment because she had the more up to date August 2017 Risk Assessment, upon which she based her decision.
5. Ms Larkin said it was rare for her to suspend an employee. She was conscious of certain matters when doing so, including the need to determine under policy that the risk cannot be appropriately managed another way. She specifically noted that suspension usually involves (and did involve in Dr Janssen's case) continuing to pay the employee during the suspension, which is not a cost which should be incurred unless warranted by the risk which would arise by taking action other than suspension (eg. temporary relocation). I consider this is a relevant, legitimate and credible matter for the CEO of a government body in receipt of public funds to take into account and I have given it weight.
6. Ms Larkin accepted under cross-examination that she was aware that Dr Janssen was complaining about matters that he said were adversely impacting his psychological wellbeing at work. Ms Larkin further acknowledged that in August 2017, when she received the Risk Assessment, she did not do the following: 1. ask for any risk assessments to be done in respect of the persons against whom Dr Janssen had made complaints, despite being aware he had made complaints and the Risk Assessment referred to that fact; or 2. make inquiries about the work location of the persons who had made complaints against Dr Janssen to determine if they were working.
7. It was put to Ms Larkin that the reason she did not take these steps was because she had made up her mind to suspend Dr Janssen because of his constant complaining. She denied this. She explained that she directed her attention to, and relied upon, the Risk Assessment that was provided to her which related solely to Dr Janssen. She acknowledged she did not know whether the four staff who had made complaints against Dr Janssen were in the workplace at the time of his suspension. However she rejected the proposition that there was therefore no risk, as in her opinion the concerns related to Dr Janssen's professional behaviour which, if true, posed a broader risk within SWSLHD.
8. Ms Larkin stated that that her primary responsibility as CEO is about safety in the workplace. When it was put to her that she had nevertheless done nothing about Dr Janssen's safety to that point, despite being aware of his complaints, she was frank in acknowledging that was correct. Ms Larkin reiterated however that her assessment was based on the Risk Assessment for Dr Janssen she had been given. She also stated that the Risk Assessment demonstrated to her that allowing Dr Janssen to continue working in his usual role and workplace exposed him to health and safety risks, as well as his colleagues. She particularly noted that the complaints against Dr Janssen included allegations involving physical contact by him and threats against other staff.
9. It was put to Ms Larkin that she failed to properly consider relocation of Dr Janssen as part of the August Risk Assessment because she had made up her mind to suspend because of Dr Janssen's complaining. She considered nowhere except Liverpool Hospital and determined it was inappropriate despite previously being considered appropriate in May. Ms Larkin's evidence is that she approved Dr Oliver's recommendation, which was different in August (suspension) to May (relocation to Liverpool Hospital). She also relied upon the serious nature of the allegations in the August Risk Assessment, involving behaviour impacting on other staff, which she considered would be a risk to staff at any other place of work. It should be noted that Ms Larkin's opinion in this regard was not without foundation, as Dr Janssen's own evidence was that at a meeting on 25 July 2017 he was of the view that Liverpool Hospital was no longer appropriate for him.
10. Mr Reitano submitted that Ms Larkin's evidence, which was challenged under cross-examination, should not be accepted. It was suggested that she rigidly adhered to her evidence and it was somehow untrustworthy on that basis. I do not agree. Ms Larkin was consistent in her account that she relied upon the Risk Assessment she was given and that was the basis upon which she made her decision that relocation was not appropriate to manage the risks identified and suspension was the appropriate outcome.
11. It was further submitted that Ms Larkin was 'caught out' in initially denying knowing about the complaints by Dr Janssen, only to later acknowledge she was aware Dr Janssen had made multiple complaints. However Ms Larkin specifically says in her written statement that she was sent an email by Dr Janssen containing complaints that would be the subject of investigation. Her awareness of Dr Janssen's complaints was not hidden in her evidence. She also explained in her oral evidence that she had delegated the task of dealing with Dr Janssen's correspondence in which he raised his complaints to the Director Workforce of SWSLHD, Ms Glenda Dingwall, to seek to maintain her independence from the matter.
12. I do not consider Ms Larkin's evidence, considered in totality, demonstrates she was seeking to disguise her real reason for implementing the suspension, being to rid SWSLHD of a constantly complaining employee, or simply to punish him. Ms Larkin was consistent in her evidence that her decision was made on the basis of the Risk Assessment provided to her. She frankly acknowledged there were things she did not do as part of her decision-making process, some of which (such as the failure to review the decision every 30 days which is discussed further below) did not, with respect, cast her and those within the SWSLHD advising her in a positive light. This does not mean that her evidence was untruthful, and I am not prepared to find it was.
13. I find that Ms Larkin's opinion that there were risks in Dr Janssen remaining in the workplace that could not be addressed by means other than suspension was genuinely held. As the CEO of a large and diverse public health organisation, Ms Larkin relied upon the information gathered by, and advice of, others - Ms Smith who prepared the Risk Assessment and Dr Oliver who made the recommendation to suspend. I do not consider that to be unusual in the circumstances. Further, on the information presented to her in the Risk Assessment, it cannot be said Ms Larkin had no basis on which to form the view there was risk in allowing Dr Janssen to continue working during the investigation. The range and type of allegations made against Dr Janssen by multiple colleagues was evident on the face of the Risk Assessment.
14. Dr Janssen contends that matters in the Risk Assessment relied upon by Dr Oliver and Ms Larkin are false - for example, he did not make any threats to harm other employees. However this does not establish that Dr Oliver and Ms Larkin manipulated the Risk Assessment to justify the outcome of suspension, as reprisal action against Dr Janssen because he had made complaints. It simply means they relied on incorrect propositions, if indeed they were incorrect. As noted above, the Commission is not concerned with whether the decision made by Ms Larkin was the right decision or fair decision, only whether a substantial and operative reason for her decision was Dr Janssen's past complaints.
15. It was submitted that a Jones v Dunkel inference should be drawn from the failure of SWSLHD to call Glenda Smith, who prepared the Risk Assessment, as a witness. However the available inference is only that Ms Smith's evidence would not have assisted SWSLHD's case. The Commission cannot infer that her evidence would establish a victimising motive of Ms Larkin and/or Dr Oliver, or that they improperly interfered with the Risk Assessment prepared by Ms Smith. In circumstances where the decision-maker Ms Larkin has given evidence as to her reasons and that evidence has been accepted, the Jones v Dunkel inference does not materially impact the findings.
16. Finally, in considering the motivation of Ms Larkin to suspend Dr Janssen to 'rid herself' of a troublesome employee, the fact of suspending Dr Janssen would not, in itself, preclude him from making complaints about matters relating to his employment with SWSLHD. As he remained an employee of SWSLHD for all purposes, he was entitled to make complaints irrespective of being on suspension and did in fact continue to make complaints during his suspension. If Ms Larkin's motive was to rid herself of a complaining employee, suspension was not an effective means of doing so. Mr Reitano submitted that an inference could be drawn that the complaints might stop as a result of the suspension. However Dr Janssen had been out of the workplace from May 2017 for reason of illness and on his own evidence continued to make a series of complaints. Given this history, in my view that inference cannot reasonably be drawn. While this leaves the broader motive of simple retribution or punishment, I do not consider there is evidence of that being a substantial and operative reason for Ms Larkin's decision.

Drawing of inferences

1. For the reasons set out above, I do not consider the evidence of Ms Larkin about the reasoning actually applied by her in deciding to suspend Dr Janssen to be unreliable. Adopting the approach in Barclay and BHP Coal, it is also necessary to consider other facts and circumstances of the case and any available inferences.
2. Mr Reitano submitted that the nature and 'litany' of deficiencies in the conduct of SWSLHD displaces the legitimacy of the suspension decision, and supports drawing an inference that a substantial and operative reason for the suspension and failure to consider alternatives was because of Dr Janssen's complaints. He submitted they were 'neon signs' demonstrating the whole process was about reprisal and not about risk assessments. I consider each of the matters raised in turn below.

No risk as staff members not in workplace

1. The four staff members who made complaints against Dr Janssen were not present at the former workplace at the time the decision was made to suspend Dr Janssen. It was said that there was therefore no risk to be managed in respect of their health and safety.
2. It was not disputed that by August 2017 the four employees were not working in the area in which they had previously worked with Dr Janssen. However the Risk Assessment considered by Ms Larkin was not restricted to risks relating to the four employees who had raised complaints against Dr Janssen, but considered broader matters as outlined above in her evidence. The evidence also established that Dr Oliver did not know or seek to inquire whether the four were still present at the workplace. As Ms Larkin relied upon the Risk Assessment and Dr Oliver's recommendation to suspend without undertaking further inquiries personally, she similarly did not know of their absence.
3. This may be considered a deficiency in SWSLHD's process. However in my view, it is insufficient to establish, alone or in combination with the other matters raised, that the real reason for the suspension was Dr Janssen's complaints. It goes to the competence of the Risk Assessment, not the reasons for the recommendation and decision that were based upon the Risk Assessment.

Non-Compliance with Policy

1. It was submitted that another deficiency was the failure by Dr Oliver or Ms Larkin to discuss the suspension with Dr Janssen's Clinical Director, Dr Slade, as required under the Policy 'Complaint or Concern about a Clinician - Principles for Action' ("Clinician Policy"). However I do not consider that this was clearly a requirement that applied in the circumstances. Dr Oliver's evidence in re-examination was that SWSLHD managed the matter in accordance with the Policy 'A Framework for Managing the Disciplinary Process in NSW Health' ("Managing Misconduct Policy"). The coverage section of the Clinician Policy envisages that action may be required in accordance with the Clinician Policy, or the Managing Misconduct Policy.
2. In my view, the Clinician Policy is appropriate to complaints involving patients and exercise of clinical judgment, rather than interpersonal workplace interactions between staff. It was not disputed that the complaints against Dr Janssen did not involve patients. I do not consider that this demonstrates a deficiency in the actions of SWSLHD.

Failure to consider relocation of other staff and/or conduct risk assessment of other staff

1. It was submitted that SWSLHD failed to consider relocating or suspending other employees who Dr Janssen had made complaints about. The focus was solely on the suspension of Dr Janssen. It was similarly submitted that the fact no risk assessment was done of such other staff supported the illegitimate nature of the suspension, as constituting retribution against Dr Janssen.
2. The essence of Ms Larkin's evidence was that she considered the information in the Risk Assessment she was given and restricted her assessment to the subject matter of that document, namely Dr Janssen. She simply did not consider the matter more broadly. Ms Larkin acknowledged she did not consider asking for any other risk assessments to be done because she was basing her decision on the Risk Assessment that had been given to her which related to Dr Janssen.
3. These actions could be characterised as a deficiency. In a complex investigation situation of complaint and counter-complaint involving multiple parties, it may be appropriate to turn one's mind to a wholistic assessment of the working arrangements of those affected There is no evidence this was specifically done by Ms Larkin. However that does not establish that Ms Larkin's motive was not managing risks she believed existed, but retaliating against Dr Janssen.
4. In any event, the nature of some of the concerns raised against Dr Janssen referred to in the Risk Assessment (whether correct of incorrect), would remain even if some unspecified employees were transferred and/or suspended. Ms Larkin's evidence was that she was concerned that the complaints against Dr Janssen were, on their face, of a serious nature and related to his professional behaviour in the workplace, which in her opinion disclosed broader risks to SWSLHD not restricted to any particular employee or employees.
5. I consider that in the circumstances no adverse inference of victimisation can be drawn from the failure of Ms Larkin to conduct a risk assessment of other staff and/or their potential relocation during the investigation.

Risk assessment had not changed

1. Mr Reitano submitted that SWSLHD's Risk Assessment was made in circumstances where Dr Janssen had been away from work between 8 May 2017 and 9 August 2017 due to illness. In May 2017 suspension had not been suggested, only a transfer to another location, whereas in August 2017 suspension was seen as the only option, despite nothing having materially changed in the interim.
2. The Risk Assessments were conducted by two different persons - May 2017 was prepared by Mr Patrick Parker and August 2017 by Ms Glenda Smith. A comparison of the two documents reveals they are materially different in content. The August 2017 Risk Assessment contains more detail of the allegations made against Dr Janssen (noting Dr Janssen says these are false). It also addresses risks of interference with witnesses by Dr Janssen and difficulties in obtaining enhanced supervision for Dr Janssen if he were to remain in a SWSLHD workplace.
3. Ms Larkin's evidence was that while she did not have the May 2017 Risk Assessment before her when making the suspension decision in August 2017, although she recalled it recommended temporary relocation to another area or site. She did not however consider that to be satisfactory in August 2017. She took into account the allegations against Dr Janssen in the Risk Assessment before her, which were serious in nature and in her view would present a risk to staff at any other place of substituted work. She particularly noted the statement in the Risk Assessment that the 'nature of the allegations against Dr Janssen indicated that this conduct (aggressive and intimidating) may not be prevented in any location'.
4. In light of Ms Larkin's explanation of her approach to the Risk Assessment in August 2017 and her evidence that she focussed her consideration on the information in the document before her, I consider there was a basis in the material for her decision to suspend and not relocate Dr Janssen at that time. Whether the allegations in the Risk Assessment were false or not, and whether Ms Smith's assessment of risk was fair, are not determinative. The question is whether Ms Larkin considered that information and it subsequently formed the reason for her decision. I have accepted her evidence in this regard.
5. Further, as already noted, Ms Larkin endorsed the recommendation of Dr Oliver on the August 2017 Risk Assessment, which was suspension. This was a different recommendation to the one Dr Oliver made in respect of the May 2017 Risk Assessment, which was transfer. Dr Oliver did not communicate on the face of the August 2017 Risk Assessment information he had from a psychiatrist's report obtained by the insurer about Dr Janssen. However Dr Oliver's evidence was that the information from the report had influenced his thinking (and recommendation) about Dr Janssen returning to work, as he believed there were risks to Dr Janssen and other staff.
6. Accordingly, I do not consider that an adverse inference can properly be drawn that the August 2017 Risk Assessment was in some way illegitimate on the basis that nothing had changed since May 2017.

Decision to suspend made within one day

1. After being advised on 8 August 2017 that Dr Janssen was fit to return to work, Dr Oliver wrote to Dr Janssen on 8 August 2017 requiring him to meet ahead of any return to work. The meeting was scheduled for 10 August 2017. On 8 August 2017, Dr Janssen's lawyers wrote to Ms Dingwall requesting an agenda for the meeting. Ms Dingwall responded on 9 August 2017 stating that Dr Oliver informed her that the meeting 'is to discuss the circumstances and arrangements for Dr Janssen's return to work'. On 9 August 2017, Dr Oliver signed the recommendation in the Risk Assessment that Dr Oliver be suspended. At the meeting the next day, 10 August 2017, Dr Janssen was consequently advised of his suspension and provided with a letter from Ms Larkin stating that 'the suspension will remain until the investigation has concluded and SWSLHD has had the opportunity to consider the investigator's conclusions and any findings'.
2. The essence of Mr Reitano's submission was that this sequence of events and correspondence demonstrates Dr Oliver had made up his mind before receiving the Risk Assessment because the real reason for the suspension was the complaints, not the Risk Assessment. In my view that inference cannot properly be drawn on the evidence considered as a whole.
3. Dr Oliver's evidence was that there was always going to be a meeting with Dr Janssen prior to him returning to work upon being certified fit and the letter of 8 August 2017 reminded him of that. Prior to the meeting occurring, Dr Oliver received the Risk Assessment on 9 August 2017, reviewed it, made the recommendation to suspend based on the content of it and provided that recommendation to Ms Larkin the decision-maker. Under cross-examination Dr Oliver said he did not know why Ms Dingwall wrote the letter as she did. The letter was not addressed to Dr Oliver. He could not recall what he may have discussed with Ms Dingwall about the matter over the phone. Further, in response to a question as to why 'things happened so quickly' Dr Oliver acknowledged that while rare, sometimes things within SWSLHD can happen quickly.
4. There is force in Mr Britt's submission that Ms Dingwall's letter of 9 August 2017 does not guarantee an immediate return to work in any event. The reference in Ms Dingwall's letter to 'circumstances' could conceivably encompass a potential return to work at the conclusion of the investigation after consideration of the findings, as referred to in the suspension letter.
5. I do not consider that inferences can be drawn from the timing of these events that Dr Oliver had made up his mind to recommend suspension because Dr Janssen had made complaints, rather than on the basis of the Risk Assessment provided to Dr Oliver on 9 August 2017.

No opportunity to respond to Risk Assessment

1. It was not disputed that SWSLHD did not put any of the allegations in the Risk Assessment to Dr Janssen prior to suspending him. However this says nothing about the reasons for suspension relied upon by Dr Oliver in making his recommendation and Ms Larkin in making her decision.
2. The issue is not whether natural justice was afforded in effecting the decision to suspend. Dr Janssen was not given an opportunity to make submissions about the 9 August 2017 Risk Assessment, in respect of the efficacy of the information upon which it was based or the harshness of the impacts of the suspension. However these are not relevant considerations in determining the question for the Commission, namely, what were the substantial and operative reasons for suspension.
3. Further, and importantly, it was the evidence of Dr Oliver under cross-examination that Risk Assessments are not generally discussed with employees. It was similarly the evidence of Ms Larkin in re-examination that it was not her practice to speak to the parties being assessed about Risk Assessments, because as CEO she needed to remain impartial and not be influenced by other factors which could arise from talking to the individual. This was the reason Ms Dingwall was the contact person for Dr Janssen rather than Ms Larkin, so that when Ms Larkin made a final decision on the matters under investigation there was the necessary degree of objectivity.
4. Accordingly, I do not consider any adverse, or indeed any relevant, inference about Ms Larkin's reasons for suspension can be drawn from failing to discuss the Risk Assessment with Dr Janssen.

Failure to review Risk Assessment and suspension

1. It was submitted that the procedure that ought to have been applied to the suspension was a review every 30 days. This was not done. Mr Reitano submitted this was because it was not a legitimate suspension, but rather reprisal action against someone who dared to complain.
2. It was not disputed that SWSLHD did not review the suspension every 30 days, or at all, after 9 August 2017. SWSLHD was required to do so under the policy they applied, namely the Misconduct Policy, which I have already noted I consider is the applicable policy in the circumstances. Further, Ms Larkin acknowledged that while she was aware of that requirement under the policy she did not review the suspension at a minimum every 30 days. No explanation was given in her evidence as to why she did not do so, although under cross-examination she denied the reason she did not review the decision was because she was happy for Dr Janssen to be out of the workplace.
3. This is a clear deficiency in the actions of SWSLHD in respect of Dr Janssen's suspension and breach of SWSLHD policy. The absence of a review does not, in itself, establish the reason for the suspension and whether that reason was a substantial and operative one. However where the decision-maker does not give direct evidence of the reason for an action they have taken, it creates a vacuum in which it can be more readily inferred that the action was for a prohibited reason. The lack of explanation is concerning.
4. The failure to subsequently review the suspension decision is the deficiency relied upon by Mr Reitano that is most capable of supporting an inference adverse to SWSLHD. It casts SWSLHD in a poor light. However, the absence of evidence relates to the failure to review the decision, not the decision to suspend in the first place. There is evidence from Ms Larkin about her reasons relating to the Risk Assessment which I have considered in detail above, in the context of Dr Oliver's evidence. Having given this matter careful consideration, it does not amount to a 'neon sign' demonstrating the whole process was about reprisal or outweigh the evidence of the decision maker that I have accepted.

Suspension kept in place after investigation completed

1. The suspension letter given to Dr Janssen on 10 August 2017 stated he would remain suspended until two steps were completed - first, the investigation finished and secondly, SWSLHD considered the conclusions and findings.
2. It was submitted that the investigation was completed in December 2017/ January 2018, yet there has still been no outcome in terms of a decision about outcomes by SWSLHD. A continuation of the suspension beyond December or January by a week might be explained by way of an opportunity to consider the findings of the investigator. However the period of four months (and continuing) supported drawing an inference that the suspension was reprisal action taken against Dr Janssen to 'teach him a lesson' for having dared to complain.
3. It was clear from the suspension letter that the suspension was to remain in place until the completion of the second step of consideration of conclusions and findings. The investigation has taken some time to complete. This is not unusual in circumstances where there multiple complainants and counter-complaints, and multiple allegations.
4. There is also evidence in a letter dated 21 December 2017 between the parties' lawyers that after having the opportunity to provide submissions and evidence during the course of the investigation, Dr Janssen was sending emails to the investigator in December 2017, which despite being received at that late stage were nevertheless reviewed by the investigator. The letter of 21 December 2017 'draws a line' by advising that the investigator will not consider further material provided by Dr Janssen, in order to complete the investigation reports.
5. The statement of Maria Bris outlines events that have impacted the completion of the second step (consider conclusions and findings) from January 2018 and ongoing. Dr Janssen's lawyers raised a concern about the decision-maker which resulted in SWSLHD agreeing to change the decision-maker to a person outside SWSLHD, within the Ministry of Health. Correspondence from SWSLHD's lawyers of 1 February 2018 advised Dr Janssen's lawyers that their 'belief that the process of appointing a decision-maker is not complicated and should occur by 2 February 2018 is misplaced'. Their instructions were that formal delegations not currently in place must be created to facilitate an external decision-maker.
6. I appreciate that the extended period of suspension is adversely impacting Dr Janssen. However I do not consider there is any relevant deficiency in the actions of SWSLHD as set out above relating to the continuation of the suspension, from which an inference can be drawn about the reason for the suspension. These later events cast no light on the state of mind of Ms Larkin when she made her decision to suspend Dr Janssen.

Breach of confidence allegation

1. It was submitted by Mr Reitano that allegations relied upon in the Risk Assessment were obtained as a result of a significant breach of confidence by a colleague. Dr Janssen believed the colleague was his support person and that their communications were confidential. However it was submitted that the colleague was actually a 'spy' reporting to SWSLHD confidences that Dr Janssen had reposed in her, by way of text messages. Dr Janssen's evidence was that the Risk Assessment contained distortions of what was in his text messages, which were taken out of context.
2. The purpose of the investigation is to determine the correctness of otherwise of the allegations made by and against Dr Janssen. There is insufficient evidence before the Commission to establish whether a breach of confidence occurred. In any event, the fact that certain matters relied upon by Ms Larkin in her decision-making are disputed by Dr Janssen as unsubstantiated, and may not ultimately be proven correct, does not establish Ms Larkin did not rely upon the Risk Assessment in making her decision.

Conclusion - substantial and operative reason

1. I have carefully considered the evidence of Ms Larkin, the material she relied upon as the decision-maker and the matters said to support an inference that her decision was for reasons constituting victimisation. I find that considerations of risk were a substantial and operative reason for the decision that Dr Janssen not continue work during the investigation in his usual workplace or at another location, but rather be suspended on full pay.
2. Dr Janssen believes that a substantial and operative reason for the conduct of SWSLHD was retaliatory, in response to him making complaints about aspects of SWSLHD's operations. He asserts that the Risk Assessment was wrong in some respects, the decision-making deficient in substance and aspects of the decision-making process unfair. Those are matters which are understandably of concern to Dr Janssen and he is genuinely aggrieved by them. That sense of grievance is no doubt increased by the duration of the investigation and consequent suspension.
3. However the Commission in this matter is not undertaking a broad-ranging assessment of SWSLHD's actions and processes. Establishing liability of SWSLHD within the victimisation provisions of the Act is restricted to a narrow consideration of whether a substantial and operative reason was Dr Janssen's complaints. I am comfortably satisfied that, on the totality of the evidence before the Commission, SWSLHD has discharged the onus of establishing that Dr Janssen's complaints were not a substantial and operative reason for the Relevant Detrimental Actions. Accordingly, the application is dismissed. It is unnecessary to consider the parties' submissions regarding the Commission's powers to make relevant orders within the statutory scheme.

Orders

1. Application dismissed. JANE SEYMOUR 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: 23 April 2018