Salat v NSW Police Force

Respondent's case 28Ms Gemma Richardson filed an affidavit and was subject to cross examination. She stated that she is the General Manager of Injury Management and Compensation within the Workforce Safety Command. She had held this position since April 2007. She is responsible for the corporate strategy and management of injury management and workers compensation. She manages approximately 40 staff. 29Ms Harrison stated that in May 2010 Ms Salat was requested to not attend work until further notice and instead requested her to attend an independent medical examination. This was requested because of concerns she and others had about the applicant's well being and fitness to work, following unusual behaviour and poor performance in the workplace. This behaviour and work performance had occurred over a significant period of time. Attached was a table chronologically detailing events with the applicant from August 2008 to May 2010. 30Ms Harrison stated that in late 2007 staff were given a briefing of a proposed restructure with the workers compensation unit to be moved from the Human Resources Command to Safety Command. Three positions of Claims Portfolio Team Leader were created doing substantially the same duties as previously performed by Claims Officers at Clerk Grade 5/6.The role of the Claims Portfolio Team Leader was to be responsible for the management of a number of workers compensation portfolios within designated regions. Such a position reported to a Senior Claims Portfolio Team Leader who in turn reported to the General Manager of Compensation. There was a clear chain of command. 31From about 5 August 2008 the restructure took effect with the applicant becoming a Claims Portfolio Team Leader. Ms Harrison stated that the applicant was not accepting of the restructure. In meetings with the applicant the applicant was given the new position description and title. After consultation with staff minor changes were made to the job description. Ms Harrison stated that at a meeting on 21 August 2008 with the applicant and her union representative it was made clear to the applicant that she had to adhere to the chain of command. In her view the information the applicant was providing to management did not match the advice of management. The applicant at that meeting had to be told to calm down. 32Ms Harrison had cause to speak to the applicant concerning a publication called Barra Byte dated September 2008 (exhibit 2 tab7), which refers to a recent conference in the Northern Territory. A testimonial was included in the publication from the applicant about her attendance at that conference. During the meeting the applicant at first stated that she did attend the conference but later in the meeting recanted this. Ms Harrison stated that she found the conversation to be very unusual and a bit disturbing. 33Ms Harrison stated that the applicant had complaints about the internal processes within the respondent for dealing with workers compensation claims and errors that occurred with wages data and backlog. A priority system was established and contractors were engaged from time to time to assist. It was Ms Harrison's evidence that the applicant would make wild accusations to her stating that " we are corrupt" and " deliberately not doing anything" . The applicant would belittle contractors as they were not permanent staff and dismiss their opinions. After investigations it was found that the applicant's complaint that contractors were not following set procedure was not correct. 34In August 2008 Ms Harrison was aware that the applicant's supervisor Ms Betteridge had cause to speak to the applicant re her work performance. Support and counselling was offered but not accepted by the applicant. 35In early 2009 the applicant was still complaining about the restructure and the lack of consultation. Ms Harrison advised her that her comments had been considered but not implemented. Ms Harrison said that the applicant would not do tasks that fell outside of what she believed were new tasks in the new job description. 36Between January 2009 and about May 2009 Ms Harrison stated that she was still receiving reports from Ms Betteridge that the applicant was not performing. Again support and counselling was offered and refused by the applicant. This was also experienced by Ms Betteridge replacement Ms Hooper. 37Ms Harrison held a meeting with the applicant on 2 July 2009 as a consequence of receiving a response to a survey from a Local Area Commander which included the statement: C onnie less than satisfactory. Feels like Connie treats people as if they have no knowledge. The applicant refused to discuss the survey response. 38On 8 July 2009 Ms Harrison said she heard the applicant talking in a raised voice to her supervisor Ms Hooper. She was reminded of the Code of Conduct and to be respectful to Ms Hooper. This show of disrespect by the applicant towards Ms Hooper occurred again and a meeting with Ms Hooper and a Ms Angus took place on 20 July 2009. 39In August 2009 Ms Hooper secondment ended and she returned to Allianz and a Mr Mathew Seeto became the Senior Claims Portfolio Team Leader. Later Mr Seeto raised issues with the applicant concerning performance issues with the applicant refusing to accept offers of support and counselling. 40Ms Harrison stated that she did not agree with the applicant's recollection of what occurred when a new auto recoup process commenced in September 2009. 41In late February 2010 Ms Harrison stated that she cause to speak to the applicant due to the applicant passing work to Ms Harrison when it was the applicant's responsibility to fix the matter. If she could not then to go to Mr Seeto. 42Ms Harrison said that she became aware that the applicant was making representations about the management of workers compensation when advised by Inspector Nibbs , Corporate Services Professional Standards Manager. On 4 March 2010 she met with Mr Nibbs to discuss the complaints raised by the applicant. They could not make sense of the complaints. Ms Harrison stated that she understood that Mr Nibbs spoke to the applicant and advised her that there were no issues to be investigated by the Professional Standards Command. 43Ms Harrison stated that around March 2010 she received complaints from staff about working with the applicant. Whilst the complaints came through Mr Seeto she did speak to Ms De Tucci and Ms Oke. Both complained that they did not wish to be supervised by the applicant. Ms Harrison said that she noticed that the applicant's behaviour was getting worse and she spoke to the applicant about her becoming increasingly difficult and challenging to manage. In Ms Harrison's view the applicant neither recognised or acknowledged that there was a problem. 44On 7 May 2010 Ms Harrison stated that she was out of the office when she received a call from the Office of the Deputy Commissioner about a complaint that the applicant had made to the Deputy Commissioner about a lack of consultation regarding the new structure. Mr Nibbs advised Ms Harrison that he had already spoken to the applicant about her contacting the Deputy Commissioner and the applicant had breached this previous direction. Later that day Ms Harrison received a call from Ms Gouveia another Team Leader Claims Portfolio, about a conversation between the applicant and a Ms Oke a claims clerk. Ms Gouveia intervened in the discussion and told the applicant to leave Ms Oke alone. Ms Gouveia was upset and the applicant had gone to see one of the psychologists. Later Ms Harrison stated that she received a call from Ms Lisa Graves one of the respondent's psychologists. Ms Graves stated that the applicant was upset both crying and laughing, she presented in an incoherent manner and that she did not understand what had just occurred. In Ms Graves view she was unwell and required a medical assessment to determine her capacity for work. 45Prior to a meeting on 10 May 2010 to be held between Ms Harrison and the applicant, Ms Harrison spoke with the NSW Public Service Association to organise a support person. She was advised that the PSA was not interested in helping the applicant because the respondent had followed the correct policies and procedures. When Ms Harrison spoke to the applicant to organise a meeting to find out what happened the previous Friday the applicant advised that she was directed not to speak to her and that if she was not left alone she would go home. 46Ms Harrison stated as a consequence of what she saw as a deterioration in the applicant's workplace behaviour and her concern about the safety and welfare of other employees she after taking advice organised for the applicant to be independently examined to determine her fitness to work. A letter organising an appointment was delivered to her home that afternoon. Ms Harrison stated that she contacted the applicant the following morning to check whether she had received the letter but was advised by the applicant that it was inappropriate for her to call her and hung up. Ms Harrison organised a welfare check for the following afternoon but no person answered the front door. 47The Fitness to Continue Procedures were provided to the applicant on 20 May 2010 along with the doctors referral. Sergeant McWhinnie met the applicant provided the documents and advised that the appointment was for 24 May 2010. 48The applicant failed to attend the doctors appointment made for 24 May 2010. Ms Harrison then made another appointment for 31 May 2010. 49Ms Harrison stated that Doctor Potter rang her on 25 May 2010 and raised concerns about the applicant and her failure to attend the appointment. He stated that after reviewing the events he had a concern that the applicant's mental health was deteriorating dramatically in recent times. He advised that urgent medical attention may be required. 50During the period of 25 May to 27 May 2010 Ms Harrison stated that she received reports from various persons within the respondent stating that the applicant was contacting them to discuss her medical referral. Mr Christopher Leeds, the Director of Corporate Advice and Response told Ms Harrison that he had received a phone call on both 26 and 27 May 2010 from the applicant stating that she was well and that she would not be attending the medical examination. 51Correspondence dated 28 May 2010 signed by Mr Greg Rolph, Director, Safety Branch was sent to the applicant clearly stating amongst other matters, that she was not to call persons outside of the Safety Command and to remain in contact with Ms Harrison and Mr Seeto. 52On 31 May 2010, Ms Harrison stated that she received a phone call from Dr Potter stating that the applicant had attended his office. The applicant stated that there was nothing wrong with her and as the process was not followed properly she could not participate in the examination. She had been there for 20 minutes and did not stay for a full medical examination. 53On 4 June 2010 Dr Potter contacted Ms Harrison and said that he was attempting to write a report but because the applicant had not participated he would have to see her again. A further letter dated 4 June 2010 sent by Mr Rolph to the applicant stated clearly that if she did not participate and comply with the psychiatrist then disciplinary action may be taken including dismissal. It was also requested that the applicant attend her General Practitioner for a full physical assessment to ensure that there is no underlying medical condition. 54On 2 June 2010 Ms Harrison said that she received a call from Mr Rolph stating that WorkCover had received a complaint from the applicant of bullying and harassment. On 9 June 2010 Ms Harrison met with Mr Ankucic from WorkCover. The following day Mr Harrison received an email from Mr Ankuric which in part stated that the applicant's complaint did not come under OHS and or WorkCover NSW jurisdiction. The email stated that he had spoken with the applicant and that the actions taken by the respondent were totally appropriate and necessary and that she should cooperate with the respondent. He also stated that he had concerns about the applicant as she seemed confused and in need of professional help. 55On 17 June 2010 the respondent received Dr Potter's first medical report dated 8 June 2010. 56The respondent then received a letter from the applicant stating that she rejected that she was suffering from any psychological or mental disorder and that she sought for mediation to take place to resolve outstanding issues. This correspondence was replied to advising that her requirement to attend and comply with the assessment still remained. 57On 20 July 2010 Ms Harrison stated that she received a phone call from Dr Potter advising that the applicant had attended his office on 12 July 2010 but did not answer questions. 58On 22 July 2010 the respondent wrote to the applicant and provided a medical report of 8 June 2010 from Dr Potter. It also advised that if she was not satisfied with the recommendation of Dr Potter she was eligible to lodge an appeal within 21 days from the date of the letter. 59As far as she was aware the applicant did not lodge an appeal from the report of Dr Potter. 60On 4 August 2010 the respondent wrote to the applicant and provided the second medical report of 20 July 2010 from Dr Potter, along with information about the appeal process. 61Again Ms Harrison stated that no appeal was lodged by the applicant. 62It was Ms Harrison's view that the applicant's refusal to participate in any assessment was steadfast and the respondent was never going to have her properly assessed. Therefore she believed that the respondent would never get to a position to put in place any strategies for the applicant to have treatment and to work towards a return to work. 63Ms Harrison stated that consideration was given to terminate the applicant for failing to comply with directions from Superintendent Rolph to participate in the medical assessments. She also stated that consideration was given to what was perceived to be a more compassionate and less punitive approach of a medical discharge. Ms Harrison then went onto describe the process of what is to occur so as a member of First State Super must take, so as the account balance in the superannuation fund can be released. One of the requirements is that the member's employment must be terminated. Accordingly , the medical discharge approach was taken as it may give the applicant the opportunity to seek access to her superannuation balance earlier. 64On 20 August 2010 the respondent left a message for the applicant to make arrangements to talk with them about the possibility of a medical discharge. The applicant did not return the call. 65Ms Harrison then wrote to the applicant dated 15 September 2010 advising that her employment would be terminated by way of medical retirement on 30 September 2010. Ms Harrison stated that the applicant could have contested the assessment and if she insisted , the decision to medically retire her. 66Post the termination of the applicant the restructure that was announced has been completed which has resulted in the Safety Command functions amalgamating with Human Resources Command with Corporate Services which has resulted in the position held by the applicant being removed. 67Mr Mathew Seeto worked for the respondent from August 2006 to January 2011. During that period he carried out work within the Human Resources Command including working in a higher duties capacity as the Senior Claims Team Leader. During his employment he came into contact with the applicant as a fellow worker and as her supervisor. 68Mr Seeto stated that he found difficulty working with the applicant as he found her to be confusing and inaccurate in her communication. When he took up the role of Senior Claims Portfolio Team Leader on a higher duties basis in September 2009 the applicant reported to him. It was his belief that the applicant did not accept him as her manager. She stated to him that he had no right to the manager's position and that she had more experience. When giving instructions to persons in his team the applicant would give contrary advice to the claims officer she was supervising. 69Mr Seeto stated that by November 2009 most claims officers had complained about the applicant and did not wish to work with her. Around this time Mr Seeto stated that he had sent an email spreadsheet to the relevant person in each command and copied in persons in his section. The applicant sent the email to the Mounted Unit Commander, with in his view an incoherent email. The applicant on occasions sent other confusing emails notwithstanding that Mr Seeto had spoken to the applicant stating to her to keep it simple. Mr Seeto said he received complaints from other Commands concerned about confusing advice they were receiving from the applicant. 70Mr Seeto also had to speak to the applicant about working beyond 7.00pm. 71Mr Seeto stated that the respondent had commenced a programme of working on a priority list to reduce outstanding wage reimbursement requests that had been rejected by the insurer. The applicant did not accept the priority list. Mr Seeto stated that he never understood the argument the applicant raised. Mr Seeto found that it was only the applicant that did not understand the systems and processes or adhere to the temporary fixes and practices established. 72It was Mr Seeto view that when he brought an issue to the applicant's attention , she would not accept his advice as to how best handle the issue. Prior to March 2010 he received a call from their insurer Allianz to complain of the phone calls their case mangers were receiving from the applicant, that they did not understand and that went for long periods of time. 73Mr Seeto also stated that the applicant did not like temporary employees and had heard her tell them that they should not have authority or access to records. 74Mr Seeto said that he became aware after the fact that the applicant had made representation regarding her concerns about the management of workers compensation to Professional Standards, the Deputy Commissioners and Commissioner's Office. On 4 March 2010 he and Ms Harrison met with the applicant but could not make sense of her complaints. 75Around the middle of March 2010 a Claims Officer Ms Sue Di Tucci spoke to Mr Seeto stating that she could not work with the applicant. She felt harassed by the applicant . Also she did believe that the applicant did not understood work issues. He later spoke with the applicant and sought to get across to her about how she spoke to people and to explain herself more fully. It was during this conversation that the applicant stated to Mr Seeto that he was not a supervisor. The applicant did not believe that she had a problem communicating with others. 76On 25 March 2010 Mr Seeto with Inspector Jo Reed met with the applicant and a number of issues were discussed including the issue of the applicant doing work outside of what she was required to do. 77Mr Seeto in his affidavit went to various parts of the applicant's affidavit and stated that he either did not state what is expressed or did not understand the comment in the affidavit . 78Dr Brain Potter was summons to gave evidence. Dr Potter is a psychiatrist holding a Bachelor of Medicine: Bachelor of Surgery: Certificate of Paediatric Psychiatry: member , Royal Australian and New Zealand College of Psychiatry: Fellow, Royal Australian and New Zealand College of Psychiatry and Certificate in Child Psychiatry, Royal Australian and New Zealand College of Psychiatry. 79He stated that he saw the applicant on two separate occasions. The first on 31 May 2010 for approximately 20 minutes and the second on 12 July 2010 for approximately 5 minutes. He provided two reports dated 8 June 2010 and 20 July 2010 and a supplementary report dated 15 April 2011. All three reports became exhibits in the case. The supplementary report was written post Dr Potter reading the applicant's filed statement. He also commented on the Assessment report on the applicant, with the date of evaluation being 21 May 2010. He stated that his opinion of the applicant had not changed from what he had expressed in his three reports. He based his opinions on his training as a psychiatrist and within the guidelines of a legal process and the college's ethics procedures. 80Dr Potter stated that whilst he did not do an assessment of the applicant this did not stop him from making a report giving a psychiatric opinion on what was happening. He stated that as a consequence of when he saw the applicant on the first occasion he had a concern about her from a clinical point of view. He also stated that the attached position description that accompanied the referral papers was not relevant in a way, because his view that whatever the position description expressed, because he believed that the applicant was in a frightened , anxious , isolated sort of place where the world had become such a hostile place that he thought it would be hard to do any work or engage in any work. Its relevance would be where the more responsibility and more demands of the position he would not be surprised that it would lead to increasing anxiety and increase in difficulty and being able to work well. Increasing demand and responsibility would generate anxiety to which the applicant would try to contain themselves in becoming more rigid. The more rigid they become the more difficulty there is in their relationships with people. 81In response to questions from the Commission, Dr Potter stated that notwithstanding the short periods of time he saw the applicant he could conclude that she had a psychiatric problem He stated that: I think it's was most likely a personality disorder and the sort of personality that we've seen here in Court today which is then in the documents too is we -is a narcissistic personality disorder where the individual reacts to the world from their own understanding , their position and it doesn't have , necessarily a lot of relevance to what other people are thinking or saying or doing and the more that the individual becomes anxious and the more they're questioned for any reason then the more they become into like a schizoid state if that word makes sense where they start to function within a world of their own where they make their own interpretations, their own understandings, their own meanings of what is going on around them and most often there's a lot of misunderstanding and misinterpretation about what's going on. He stated that he believed his reports were still accurate seeing the way the applicant saw to engage him in getting information for her case. He also stated that he did not state in his reports that the applicant should not work on a day to day basis or that the condition was permanent because he had not the opportunity to do a formal assessment. 82The applicant asked the following questions: Q. At what point of time does it manifest in a future or immediate inability to work ? A. It's when our vulnerabilities becomes such that we're overwhelmed with them and instead of working with them , with our vulnerabilities-with people to help us with our vulnerabilities we become more withdrawn and isolated and antagonistic and then when an estranged relationship develops with those who are potentially there to help us that's when it goes wrong. Q. What about in a situation where-how long , how long, actually, how long does it take in your report which has been tabled , in the April report, you're talking about no ability to work with any employer is that correct ? A. Well it may or may not be at this stage. It is worrying that this has become so entrenched and so reinforced the antagonism, the hostility and the estrangement has become so entrenched and so reinforced the worry now is that that might also be taken to another workplace. 83Ms Jennifer McWhinnie filed an affidavit and was subject to cross examination. Ms McWhinnie commenced employment with the respondent in February 1997 and currently holds the position of Acting Senior Sergeant in the Operational and Skills Safety Command. 84She stated that on 7 May 2010at 7.00am she received a phone call from Inspector Nibbs who stated that the applicant had been constantly contacting the Commissioner and Deputy Commissioner by phone and it had to stop. Sergeant McWhinnie then sent an email to both Gemma Harrison and Julie Wills informing them of the conversation. 85On 10 May 2010 she was asked by Ms Harrison to escort the applicant out of the building. Ms Harrison advised Sergeant McWhinnie that the applicant had been asked to leave and had not. She found the applicant and escorted her to the lift. 86On 19 May 2010 she stated that she received a call from the applicant stating that documents were going to be delivered to her home, but she did not want this to occur. After discussions with other staff and further phone calls from the applicant it was arranged to provide the documents to the applicant at the Campus of Sydney University the following day. 87On the following day she met with the applicant and handed her an envelope containing a letter dated 18 May 2010 from Superintendent Rolph to the applicant and a copy of the Fitness to Continue guidelines. The meeting lasted approximately 15 minutes with Sergeant McWhinnie answering questions from the applicant whilst reading the documents. 88On 24 May 2010 Sergeant McWhinnie was asked by Ms Harrison and Superintendent Rolph to contact the applicant and inquire as why she had not attended her medical appointment that day. A number of messages were left on the applicant's phone. The applicant returned a call late that day but Sergeant McWhinnie was out of the office. She said she was present when Inspector Murchie called the applicant's general practitioner Doctor Guy Davies. She said she was told by Inspector Murchie that Doctor Davies stated that the applicant was not suicidal and there was no immediate risk to her welfare. 89The following day she and Senior Sergeant Kirby attended the applicant's home where at the applicant's request a meeting was held at a local coffee shop. When asked why she had not attended the medical appointment the applicant ignored the question and instead talked in circles. It was stated to the applicant that she had 14 days to respond to the Fitness to Continue letter. Later that day Sergeant McWhinnie contacted the applicant and left a message to advise that if she did not attend the doctor's appointment she would be on leave without pay unless she obtained a medical certificate from her doctor and then she would be on sick leave. 90On 1 June 2010 the applicant contacted Sergeant McWhinnie seeking to come to work. Later she was advised that she was to remain at home, correspondence was being sent to her regarding her appointment and that she was only to contact her direct reports. 91Ms Debbie Gouveia filed an affidavit and was subject to cross examination. She stated that she commenced with the respondent on 6 April 2010 and presently was a Contract Advisor, Workers Compensation. Ms Gouveia stated that she first met the applicant when she joined the respondent and held the same position as a Claims Portfolio Team Leader. She stated that she found the applicant to be very difficult to understand and communicate with on a day to day basis. At a staff meeting held in either April or May 2010 she found that the applicant complained about matters and her explanations confusing and disruptive to the meeting. It was view that the applicant did not respect Mr Seeto and his authority. She found that the applicant did not follow the procedure with respect to the wage reimbursement claim procedure, wishing to resolve old claims regardless of the size of the claim for wage reimbursement. 92Ms Gouveia stated that she received a complaint from Ms Oke that the applicant was wasting her time with pointless questions which she herself would answer. 93On 7 May 2010 Ms Gouveia witnessed an exchange between the applicant and Ms Oke concerning a calculation of a payment. She stated that whilst the applicant was asking a question to Ms Oke , the applicant would interrupt to give her view. After a few minutes with voices starting to be raised Ms Gouveia went across and sought to help as she believed that Ms Oke was becoming frustrated and the applicant needed help. In her view what was being raised by the applicant was a matter that was outside her portfolio. She advised the applicant of this and said that if she knew how to fix it then do it. She rejected the version as expressed in the applicant's statement. 94At the end of the exchange she contacted Ms Harrison and advised her of the exchange. Later in the day she sought to speak to the applicant but the applicant did not wish to speak to her. 95On 10 May 2010 Ms Gouveia saw Ms Harrison approach and speak to the applicant about what had happened on 7 May. She heard the applicant say to Ms Harrison that she had been directed not to speak to her. She did not see Ms Harrison sit on the applicant's desk. 96Ms Sue Di Tucci filed a Statement of a Witness dated 27 July 2010 and was subject to cross examination. She commenced employment with the respondent on 18 May 2009 as a contractor in the Safety Command. She worked in the "Recoups Team" She was made a permanent employee on 22 March 2010. In approximately April 2010 a new structure was in place and she was told by Mr Seeto that the applicant was her supervisor. She found communication with the applicant confusing and difficult to comprehend. Long emails taking half an hour to read would be followed by an hour conversation which she would still not know what she had been requested to do. It was her view that the applicant did not understand how the systems worked. The applicant seemed incapable of providing clear instruction. At one stage she went to Mr Seeto and complained that she couldn't work with the applicant 97Ms Di Tucci found the applicant intimidating when she stood over her when working at her computer. At times the applicant would get obsessed with trivial matters and would continue to discuss matters that they had no control over. 98On 10 May 2010 Ms Di Tucci saw Ms Harrison speak to the applicant and sought to speak to her which the applicant denied. Ms Harrison advised that if she did not talk with her she would have to go home with the applicant replying that she had work to do. 99Mr James Mattson filed an affidavit which had annexed to it several emails directed to the applicant. The initial email sought for the applicant to provide the actual names of persons in her statement that she had referred to by title , some of which were not the official title used. Enclosed also was the applicant's reply that did not provide the information that was sought but her wish of how the matter should be handled. 100In the final submissions of the respondent it stated that the Commission should treat the applicant's filed statements with caution as parts of the statements were incomplete and therefore difficult to respond to and contained submissions rather than evidence. The medical evidence could not help the Commission as it either lacked any detail or was made without a full history of family, work situation or medical information. None of this medical information was provided to the respondent by the applicant during her employment. 101It was the genuine concern of employees of the respondent that the applicant's behaviour at work gave concern and it was only after Ms Harrison had spoken to her superiors and an "in house" psychologist that she directed the applicant to attend a psychiatrist on 10 May 2010. 102Whilst the applicant had been included in consultation concerning the proposed restructure and her new position she did not accept the final restructure and her new role. The respondent submitted that it was irrelevant and incorrect for the applicant to state that she was not a Claims Portfolio Team Leader. The new position was in their view the old position with a supervisory role which the applicant accepted in cross examination that she did supervisory functions. Consultation with the applicant and the applicant's union representative did take place. The applicant through her union never contested the new structure before the NSW Industrial Relations Commission. There existed an obligation for the applicant to accept the new role taking into consideration the extreme similarity of the positions. They also submitted that the importance of the applicant's position was irrelevant taking into consideration the views of Doctor Potter with respect to the applicant's behaviour at work, rather than what role she was performing. 103The applicant's response to be questioning about her "attendance " at a seminar interstate which she admitted she did not attend was bizarre. Her concerns about procedures at work, which the applicant did not accept and raised concerns demonstrated that she did not listen to the explanations given to her. Also her lack of acceptance of temporary and contract employees. The evidence that the applicant did not accept her new manager Mr Seeto who was younger than the applicant and the complaints from fellow workers about working with her. It was the respondent's submission that the applicant's behaviour and performance was continuing to deteriorate in 2010 with the applicant becoming more aggressive on occasions. 104The applicant's behaviour on 7 May 2010 upset both a fellow worker and herself which resulted in the applicant seeking assistance from an "in house" psychologist Ms Lisa Graves. On 10 May 2010 the applicant's manager sought to speak to the applicant on a confidential basis but the applicant refused to take part. Later the applicant was requested to attend a medical examination and was provided with the details and a copy of the referral and the Fitness to Continue Guidelines. The applicant failed to attend the appointment, did attend a subsequent appointment but did not participate in the assessment. Dr Potter in a report to the respondent outlined his concerns concerning the applicant. In the respondent's view those medical opinions validated the respondent's concerns. A second appointment with Doctor Potter again resulted in the applicant refusing to participate in an assessment. 105The reports of Doctor Potter were provided to the applicant along with information on her rights of appeal. No appeal was lodged by the applicant or notified by her to the respondent. Invitations by the respondent to the applicant to discuss the situation were not responded to. 106It was the applicant's manager's view that the applicant was not going to participate in any assessment and therefore they would never get into a position to put in place any strategies for the applicant to have treatment and to work towards a return to work. 107The applicant was advised of her termination by written correspondence and attached was a form for the right to appeal. The respondent stated that the applicant is unfit to discharge her duties. This view was confirmed by Doctor Potter in cross examination. 108It was the respondent's submission that it had the ability to direct the applicant to attend a medical examination. The respondent had a genuine concern over the health of the applicant and what was being required of the applicant was reasonable. They stated that such a request had been upheld by the Federal Court that it is not a contravention of disability discrimination legislation. Also such request is in accordance with the respondent's Code of Conduct ( clause 5) and the Fitness to Continue Guidelines. In their view the applicant had an obligation to obey the directions. 109It was the respondent's submission that it was not a requirement as expressed by the applicant that a medical finding that she was permanently unfit had to be made. The respondent stated that in accordance with the Police Act 1990, section 82 HA that what is required is only that it "appears likely to be of a permanent nature.......... the Commissioner may cause the officer to be retired. Doctor Potter in his report of 8 June 2010 made such a finding. The applicant had never recognised any unfitness or incapacity, partake in the assessments or partake in any management of her disorder. Doctor Potter's evidence in cross examination was that the disorder that he identified becomes entrenched such that the applicant cannot engage in any workplace. Over a year later he still maintained that she is unwell. The respondent submitted that reinstatement or re employment is impractical because the applicant has demonstrated an inability to follow lawful and reasonable directions, she is unwell and unfit for any work and the applicant will not partake in any assessment that would lead to a treatment therefore there is no return to fitness in the foreseeable future. Also the applicant has not provided any medical report to demonstrate her fitness. Finally the respondent advised that since the applicant's cessation of employment there has been a restructure which has resulted in her position no longer being available.

Consideration and Decision. 110The initial issue I believe to be determined is whether the directions of the respondent to attend a medical assessment are lawful and reasonable. It was the applicant's submission that the respondent did not have such a power to direct especially when the person in question did not wish to attend as she had maintained throughout the hearing that there was no medical basis for the direction to be made. 111The Code of Conduct and Ethics stated that : An employee of NSW Police must: 5. comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction. Within the Fitness to Continue Procedures under the sub heading Part 2 GUIDELINES: A. Referral of Employees it states in part: the employer has concerns about the fitness of an employee to continue to work and the employee will not seek advice from a medical practitioner; or the employer has concerns about the health and safety of others in the workforce. Employees are obliged to comply with an employer's request to attend a fitness to continue assessment. It is settled law that an employee has a general obligation to follow the lawful and reasonable directions of their employer and a failure to do so may justify summary dismissal (see Adami v Maison de Luxe Ltd(1924)35 CLR 143 and Byrnes v Treloar & Ors.[1997] NSW SC629. In Varas v Fairfield City Council [2008] FMCA 996, the Federal Magistrate's Court also observed : 103. Similar issues arose in Thompson v IGT (Australia) Pty Limited[2008] FCA 994. The applicant in that case objected to seeing a psychiatrist when called upon to do so by his employer. At[38] Goldberg J noted that the applicant was not a doctor and whether it was appropriate or necessary for the applicant to have a psychiatric assessment or to have a meeting with a psychiatrist was a matter ultimately for the doctors to determine. Having regard to the applicant's history in that matter, Goldberg J did not consider the employer's request to be unreasonable. At [48]-[52] his Honour said: The following principles are well established. An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer. In McManus v Scott-Charlton 919960 70FCR16, Finn J said at 21: The accepted view in this Court is that the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer: see Australian Telecommunications Commission v Hart(1982) 65ALR 41; Bayley Osborne (1984)4 FCR141. 112Taking into consideration the above, it is my finding that the respondent had the power to direct the applicant to attend a medical appointment for assessment. Taking into consideration the evidence of Ms Harrison and the advice that she received from her superior and Ms Graves, it is my finding that on 10 May 2010 she had a genuine concern for the applicant's well being and it was this concern that prompted her to direct the applicant to attend. 113The second issue that has to be determined is that did the respondent have the grounds to terminate. In correspondence dated 15 September 2010 from Ms Harrison to the applicant it stated: I am writing to advise you that Dr Brian Potter, Independent Psychiatrist, has determined that you are medically unfit to discharge the duties of your office. In these circumstances, approval has been granted for your medical retirement from the NSW Police Force. Copies of the reports from Dr Potter dated 8 June 2010 and 20 July 2010 were sent to you via registered post on 22 July 2010 and 4 August,2010, respectively. As you are aware, you had 21 days to appeal from the date written on the letters that were sent to you. Attached is a waiver for you to sign and return. If we do not receive a signed waiver form from you , the NSW Police Force will proceed with your medical retirement with a last day of service of 30 September 2010. Any inquiries associated with your final leave entitlements should be directed to Internal Customer Service on (02) 8835 8400. The respondent did not receive a signed waiver form therefore the termination went ahead. 114The Police Act,1990 states in sect. 3 Definitions "administrative officer" means a member of the NSW Police Force other than a police officer or a temporary employee. It is my view that the applicant was an administrative officer. Sect.81 of the above act states: Officers to whom Part applies 81 Officers to whom Part applies This part applies to all administrative officers(other than members of the NSW Police Force Senior Executive Service) Section 82HA states: Incapable non-executive administrative officer may be retired 82HA Incapable non-executive administrative officer may be retired If: (a) a non-executive administrative officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the Commissioner may cause the officer to be retired. Ex 2 tab 72 is a copy of the report prepared by Ms Harrison that sought approval from her superiors for the medical retirement of the applicant. This approval was granted. 115The two medical reports of Doctor Potter were prepared in 2010. He also prepared a supplementary report dated 15 April 2011. This report was written after Doctor Potter had read the applicant's statement (ex.A). In this supplementary report the doctor stated: Ms Salat's statement demonstrates many of the features of concern expressed in my reports. In particular she demonstrates features of a narcissistic personality trait with an increasing paranoia and a sense of fragility with misinterpretation as the statement develops and becomes more difficult to follow for details expressed. He also stated that : Also as expressed in my report , until she has the recommended assessment and containment within an appropriate psychological management, it will not be possible for any workplace to be reassured about her safety and the workplace safety within her increasing fragility and paranoia. 116Doctor Potter gave the following responses to questions asked by the Commission. Q. You saw Ms Salat on two separate occasions ? A. Yes Q. One for approximately 20 minutes and one for approximately five minutes ? A. Yes Q. In your view could you in such limited times come to a conclusion that the applicant had a psychiatric problem ? A. Yes in that my engagement with Ms Salat at that time complimented the concerns that were being expressed by those who knew her over a longer period of time. 117In his report of 8 June 2010 Doctor Potter stated : From the information you have provided , and her presentation at this assessment, she is significantly disturbed giving a sense of fragility and brittleness with which it is most unlikely that she will be able to work and that she is likely to experience , at the moment, any help to return to work as threatening and persecutory. In his second report dated 20 July 2010 Doctor Potter stated : Without psychiatric assessment and management neither she nor those with whom she works can feel safe. 118Section 82HA of the Police Act expresses the term "appears likely to be permanent". I note that that the requirement is not that the unfitness or incapacity be permanent but rather appears likely to be of a permanent nature. It is my finding that the reports and evidence of Doctor Potter arrive at the conclusion that the applicant is unfit to discharge her duties and that she is most unlikely to be able to work. 119It is a fact that the applicant refused to participate in the medical assessment programme. It is also a fact that the applicant throughout the hearing refused to acknowledge that she was unwell. It was her intransigent attitude that all was well and that her issues should be handled through mediation or the grievance procedure showed to me that she did not have a clear grasp of her mental condition. This was exemplified by her failure to indicate, when given the opportunity during the hearing, that she would in the future follow a prospective directive by the respondent and attend a medical assessment. 120At no point did the applicant commence appeal proceedings against the reports of Doctor Potter or the decision to terminate her. In my view it was the actions of the applicant in her failure to recognise that employees of the respondent were trying to help her in a constructive way that led to her own dismissal. Her failure to recognise what Doctor Potter was stating concerning her mental situation also contributed to her dismissal. If there had been a recognition by the applicant that she was unwell then a medical programme could have been commenced. By not participating in the medical assessments the applicant cut off this avenue. 121As Doctor Potter stated that it was not uncommon that the disorder becomes entrenched such that the applicant cannot now engage in any workplace. 122It is my finding based on the medical evidence provided by Doctor Potter that the respondent had the grounds to terminate the applicant. 123In conclusion it is my finding that the termination of the applicant by the respondent was neither harsh, unreasonable or unjust. 124This matter is now concluded.

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: 27 July 2011