Suryawanshi v Health Secretary in respect of the Sydney Local Health District [2026] NSWIRComm 1024

(1) during the misconduct process in 2024 until 31 January 2025, by Morris Legal;

(2) from 31 January 2025 to in or around March 2025, by HWL Ebsworth, who assisted in preparing a show cause response;

(3)  from at least the commencement of these proceedings on 27 March 2025 until on or around 14 April 2025, by Danny King Legal; and

(4)  from 14 April 2025 onwards, by Maurice Blackburn Lawyers.

1. The matter was heard over 13 days, including an almost continuous two‑week period commencing on 21 July 2025, with further hearing dates in August and October 2025. The Commission received extensive oral evidence from multiple witnesses for both parties, together with an evidentiary record exceeding 5,000 pages. The parties filed five sets of written submissions over the course of the proceedings. The Commission has considered all of the material before it. These reasons refer only to those matters necessary to resolve the issues in dispute.

1. In the absence of an agreed statement of facts, the background that follows is drawn from the material filed in the proceedings, including the submissions of both parties and is necessarily summarised.
2. The Applicant commenced employment with the Respondent in 2005 as a trainee doctor. He subsequently held a number of clinical positions before being appointed, on 16 March 2015, as a Staff Specialist in the Department of Endocrinology and Metabolism at Concord Repatriation General Hospital (Concord Hospital) under the Staff Specialists (State) Award 2022 (Staff Specialist Award).
3. In November 2018, the Applicant commenced in a position described as Director, Diabetes, at Concord Hospital. While the parties dispute the status and genesis of that title, it is common ground that it was a title only and not a classification under the Staff Specialist Award.
4. The Applicant initially reported to the then Head of Department, Professor Marcus Siebel, and from May 2022 reported to the succeeding Head of Department Dr Nic Kormas.
5. The Applicant worked within the multidisciplinary Diabetes Unit, comprising Diabetes Nurse Educators (DNEs) from the Diabetes Education Centre, medical staff from the Department, and allied health practitioners. Each discipline maintained distinct professional roles, scopes of practice, training and obligations, while working together to provide comprehensive care to diabetes patients. The Diabetes Unit was located on Level 6 of the Medical Centre at Concord Hospital.
6. At the time of his termination, the Applicant was engaged on a 0.9 FTE basis as a Staff Specialist and was the most senior doctor working in the Diabetes Unit. He did not have any line managerial responsibilities.
7. During the relevant period the DNE team comprised of SL (from July 2015), AZ (from March 2020), MT (from September 2021), and Ms Juliana Wu (from 20 March 2023 to 19 May 2024). The DNEs were managed by the Operational Nurse Manager (ONM), Ms Megan White, to whom they reported. Within the hospital's management structure, the medical Head of Department (HOD) reported to the Director of Medical Services (DMS) and the ONM reported to the Director of Nursing and Midwifery.
8. In or around 2020, the Respondent proposed a new nurse‑led diabetes model of care (Diabetes Model of Care). From around 2021, the Applicant raised concerns about the proposed model. The Diabetes Model of Care was implemented at Concord Hospital in stages over several years including during 2023 and 2024. The Applicant's opposition to the Diabetes Model of Care provides context for a number of the allegations considered in this decision.
9. In July and September 2023, the Applicant made allegations against Dr Kormas. In August 2023, allegations were made against the Applicant which, as stated in correspondence provided to the Applicant, were said to have originated from Dr Kormas and the Psychiatry Department. Following an investigation, neither set of allegations was substantiated. The Applicant did not accept those findings, or that the allegations he made against Dr Kormas had been properly investigated, and he continued to agitate those allegations in February 2024.
10. As part of the outcome of the complaints process, the Respondent recommended that a facilitated discussion take place between the Applicant and Dr Kormas. For convenience, I will refer to that facilitated discussion as a mediation. On 28 April 2024, the Applicant and Dr Kormas attended mediation. During the discussion, they agreed to several undertakings intended to facilitate a productive working relationship. The Applicant later claimed that Dr Kormas had disregarded those undertakings.
11. Dr Kormas maintained that he had not made any complaint against the Applicant, and that a letter sent to the Applicant stating otherwise was an error. Although it initially appeared that the Applicant accepted that position, he ultimately did not, as confirmed in cross‑examination.
12. The Applicant relied on this background as supporting his contention that, by May 2024, Dr Kormas had influenced the DNEs to make allegations against him. The Respondent relied on the same background to advance a contrary submission, namely that it reflected what it characterised as the Applicant's tendency to advance unfounded allegations, difficulty accepting Dr Kormas' clinical authority, and an inability to accept outcomes adverse to him.

1. Having regard to the evidence, the submissions and the statutory framework, the issues for determination may be grouped under the following headings.

(1) Whether the Respondent has established the misconduct relied upon for the dismissal. This includes consideration of:

(a) whether the specific allegations particularised in the termination letter are proven;

(b) the effect of contemporaneous material, including text messages, emails and internal communications, on the competing versions of events:

(c) how credibility issues are to be resolved, having regard to the parties' competing contentions;

(d) whether any conduct found to have occurred constitutes misconduct under the relevant NSW Health policies; and

(e) whether (and if so how) any allegations raised by the Respondent after the Applicant's dismissal should be taken into account in determination of the applications.

(1) If any misconduct is established, whether the dismissal was harsh, unreasonable or unjust within the meaning of the IR Act. This includes consideration of:

(a) whether the Respondent's approach to the evidence, including its reliance on matters not substantiated as policy breaches, was reasonable;

(b) whether the misconduct established justified dismissal, including whether dismissal was a proportionate response; and

(c) any other matters relevant to whether the dismissal was harsh, unreasonable or unjust.

(1) If the dismissal was harsh, unreasonable or unjust, what (if any) remedy should be ordered. This includes consideration of:

(a) whether reinstatement is practicable, having regard to the viability of the employment relationship, workplace dynamics, work health and safety considerations, and the Applicant's evidence concerning his clinical role and collegial relationships;

(b) whether any matters raised by the Respondent after the Applicant's dismissal are to be taken into account in assessing the practicability of reinstatement; and

(c) whether any alternative remedy should be ordered if reinstatement is not appropriate.

1. In April 2024, the DNEs met with Ms White and Dr Kormas and raised concerns about their working relationship with the Applicant. In May 2024, they conveyed their complaints to the HR directorate, referred to as Workforce.
2. On 3 June 2024, while the Applicant was overseas on approved annual leave, he was first informed by the Respondent that a series of allegations had been made by SL, AZ and MT concerning his workplace conduct.[1]
3. In late July 2024, the Respondent implemented a risk‑mitigation strategy under which the DNEs were permitted to see patients on Level 5 and were not to work with the Applicant on Level 6. The Applicant was first notified in writing of the strategy by letter dated 7 August 2024, which attached a copy of the risk‑mitigation strategy. The letter stated that the DNEs would "remain working on Level 5" and would "undertake their relocated workplace with no disruption to duty".
4. Following the implementation of the risk mitigation strategy, the Applicant made a number of complaints, some of which were made before he was first notified in writing of the strategy. In July 2024, he complained that SL was soliciting complaints about him, that the DNEs were not attending the clinic, and that he was being excluded from team communications. He made further complaints about the DNEs not attending the clinic in late August 2024, and complaints concerning MT in October 2024, including that she had refused to attend the clinic (the Applicant's Complaints).
5. By letter dated 12 August 2024, the Respondent advised the Applicant that an external investigation would be undertaken by Sparke Helmore Lawyers into the complaints raised by the DNEs and the Applicant's Complaints. The letter enclosed the Investigation Terms of Reference - Diabetes Unit CRGH 12 August 2024, identifying 22 allegations (17 concerning the Applicant and 5 concerning the Applicant's Complaints). The Applicant attended an interview with Sparke Helmore on 11 September 2024 regarding the Applicant's Complaints and provided a written statement in relation to those complaints on 12 September 2024.
6. On 20 September 2024, Sparke Helmore Lawyers expanded the scope of the investigation to include 45 additional allegations, resulting in 62 allegations against the Applicant.
7. On 16 October 2024, the Applicant attended an interview with the investigators, regarding the allegations against him and on 17 October 2024 he provided a written response to those allegations.
8. On 19 November 2024, Sparke Helmore Lawyers provided their Investigation Report to the Respondent. The Report concluded that 34 allegations were substantiated or partially substantiated as breaches of NSW Health policy. It also found that the Applicant's Complaints were not substantiated and characterised aspects of those complaints as vexatious, lacking substance, and made with an intent to cause distress to the DNEs.
9. Under the NSW Health Managing Misconduct Policy, Mr Michael Morris, General Manager of Canterbury Hospital, was appointed as the decision‑maker in relation to the findings. Mr Morris issued his findings on 2 December 2024.
10. The findings concerning the allegations against the Applicant were considered by Ms Gina Finocchiaro, Workforce Director. On 4 December 2024, Ms Finocchiaro issued a letter to the Applicant advising that the decision‑maker had accepted the findings of the Investigation Report and inviting the Applicant to show cause why a recommendation should not be made to the Chief Executive (CE) to terminate his employment (the Show Cause Letter). A copy of the Investigation Report was enclosed. Under the HS Act, the CE was the delegated officer authorised to determine whether the Applicant's employment should be terminated on behalf of the Health Secretary.
11. On 31 January 2025, the Applicant provided a written response to the findings and the Show Cause Letter. In that response, the Applicant disputed the findings and also raised a number of complaints concerning the process, including issues of procedural fairness.
12. By letter dated 28 February 2025, the Applicant, through his legal representatives, advised that if a recommendation for his dismissal were made, he intended to seek interim, interlocutory and final relief in respect of a threatened dismissal under s 89 of the IR Act. The Applicant also requested that the Respondent inform him if any recommendation to terminate his employment was to be made. The parties are in dispute as to whether the Respondent agreed to provide such notification. The Applicant requested the Respondent inform him if any recommendation to terminate his employment were to be made. The parties are in dispute as to whether the Respondent agreed to provide such notification. In substance, the Applicant contends he was not informed that a recommendation to terminate his employment had been made to the CE before the decision was taken. In advancing that contention, the Applicant relies on correspondence exchanged between the parties during February and March 2025. The Applicant's victimisation claim is considered separately below.
13. The Applicant's Show Cause response was reviewed by Mr Nathan Rudd, Deputy Director and Legal Counsel, Workforce, for Sydney Local Health District, who at that time was the Acting Director, People and Culture. On the afternoon of 26 March 2025, Mr Rudd provided a recommendation to the CE, Ms Deb Willcox.
14. On 27 March 2025, at around 10:00 am, Ms Willcox determined that the Applicant's employment should be terminated. On that day, notification of the termination was sent by email to the Applicant's solicitor.
15. Before turning to my consideration of the issues to be determined in this matter, it is convenient to summarise the evidence and submissions advanced by the parties.

1. In support of his position, the Applicant relies on the following evidence and submissions:

(1) Dr Avinash Suryawanshi dated 16 May 2025 (Applicant's Statement);

(2) Zeimah Laszlo dated 14 May 2025 (Administration Officer in the Endocrinology Department at Concord Hospital);

(3) Chloe Hope dated 16 May 2025 (Administration Officer in the Andrology Department at Concord Hospital);

(4) Louis Fayd'herbe de Maudave dated 14 May 2025;

(5) Daad Nassif dated 16 May 2025;

(6) Sue Barsoom dated 16 May 2025 (Health Service Manager at Concord Hospital);

(7) Veronica Wong dated 16 May 2025;

(8) Ulker Can dated 16 May 2025;

(9) Patient 13 dated 16 May 2025;

(10) Chloe Jensen dated 15 May 2025;

(11) Harsan Kanagaretnam dated 15 May 2025;

(12) Varshinee Urutherakumar dated 16 May 2025; and

(13) Lynley Robinson dated 16 May 2025.

1. Dr Suryawanshi, Ms Hope, Mr Lazslo, Mr Nassif, Ms Can and Ms Barsoom were required for cross-examination.
2. To the extent that the evidence of Ms Barsoom, and that of Ms Can, went to certain factual matters in issue, I have taken that evidence into account. However, neither witness directly observed the alleged incidents, and their evidence was not informed by a complete appreciation of all relevant circumstances surrounding those events. In those circumstances, while their evidence provided some contextual support for the Applicant, it was of limited probative value in determining whether specific allegations were made out. Where relevant, I have had regard to that evidence consistently with those limitations.
3. The Applicant relied on the evidence of Ms Hope, Mr Lazlo and Mr Nassif and others as character or testimonial evidence, rather than as evidence directed to the specific factual allegations in dispute. While that evidence provided background regarding the Applicant's general conduct and working relationships, it did not address the incidents which were the subject of the allegations and was therefore not probative of whether those allegations were made out. For that reason, it is given limited weight. No other witnesses were required for cross‑examination, and their statements were admitted into evidence without objection.
4. The Applicant submitted that, prior to the events leading to his termination, he had maintained a strong performance record and had received commendations during his employment. The Respondent relied on other material said to bear on the Applicant's conduct and performance, including evidence that, in September 2023, the Applicant was directed to undertake training in the Respondent's Code of Conduct, CORE Values, and the Prevention and Management of Bullying and Harassment in NSW Health Policy Directives, which he completed.
5. The Applicant contended that his relationship with Dr Kormas had historically been cooperative but deteriorated after he raised concerns in July 2023, as described at paragraphs [17]-[19] above. He submitted that subsequent events, including a complaint received in August 2023 which he understood to have been made by Dr Kormas, and the timing of later allegations raised in 2024, reflected a continuing sequence of events.
6. The Applicant maintained that, notwithstanding an agreed outcome reached in 2024 following mediation, he did not accept the outcome of the earlier process involving Dr Kormas and continued to believe that Dr Kormas had made a complaint about him. He relied on this background, together with the timing of interactions between Dr Kormas and the DNEs in early 2024 and the absence of prior complaints over a number of years, to contend that the complaints made by the DNEs in May 2024 were instigated or influenced by Dr Kormas.
7. In cross‑examination, Dr Kormas maintained his denial of having made any complaint about the Applicant and gave evidence that the matter originated from Psychiatry, stating that correspondence identifying him as the complainant resulted from a miscommunication.
8. The Applicant contended that the Respondent should not have relied on findings that were not substantiated as breaches of the Code of Conduct. He argued that a number of matters relied upon by the Respondent had not been substantiated during the investigation and were not identified in the termination letter as policy breaches. According to the Applicant, reliance on such matters was inconsistent with the structure of the Managing Misconduct Policy and contributed to uncertainty as to the basis for the dismissal. He submitted that, in those circumstances, the Decision-Maker should have confined her consideration to substantiated policy breaches.
9. The Applicant further relied on aspects of the decision‑making process in support of that contention. He submitted that, in cross‑examination, Ms Willcox accepted that she could not recall whether she distinguished between findings substantiated as breaches of policy and those that were not when forming her view as the ultimate decision-maker. He argued that this supported his contention that the Respondent's reliance on findings not substantiated as breaches of policy was inconsistent with procedural fairness.
10. More generally, the Applicant submitted that the contemporaneous material did not support a number of the matters relied upon by the Respondent, and that the evidence, taken as a whole, did not establish misconduct. He relied on his asserted performance history, including prior commendations and support from colleagues and patients. The Applicant contended that the Respondent's findings, insofar as they relied on conduct characterised as misconduct, were misconceived, overstated or taken out of context.
11. In particular, the Applicant challenged the reliability of the evidence given by SL. He submitted that SL's evidence was internally inconsistent, not supported by contemporaneous material, and affected by misunderstanding or reconstruction. The Applicant contended that SL's evidence should not be accepted and should be given no weight in the determination of the allegations.
12. The Applicant submitted that, once SL's evidence was put aside, the remaining evidence was insufficient to establish the allegations relied upon by the Respondent. He contended that the Respondent's case depended materially on SL's account and that, absent reliable evidence from that witness, the allegations were not made out.
13. The Applicant also challenged the reliability of the evidence given by MT and AZ. He submitted that neither witness provided consistent nor reliable accounts of the events relied upon by the Respondent, and that aspects of their evidence were unsupported by contemporaneous material or affected by misunderstanding or reconstruction. The Applicant contended that MT and AZ were not witnesses of credit and that their evidence should be treated with caution, or not relied upon, in determining whether the allegations were established.
14. The Applicant further contended that, even if some of the allegations were established, the substantiated conduct was not objectively serious enough to warrant termination of employment. He submitted that the conduct relied upon when assessed in context, it did not justify dismissal as a proportionate response.

1. The Respondent relied upon the following evidence and submissions:

(1) Statement of Klaus Sommer, Senior Nurse at Concord Hospital dated 1 July 2025;

(2) Statement of Dr Stewart Condon, Acting Director of Medical Services at Concord Hospital dated 1 July 2025;

(3) Statement of Juliana Wu, Registered Nurse at Concord Hospital dated 2 July 2025;

(4) Statement of Dr Nic Kormas, Head of Department, Endocrinology at Concord Hospital dated 2 July 2025;

(5) Statement of Deborah Willcox, Chief Executive, Sydney Local Health District dated 2 July 2025;

(6) Statement of Nathan Rudd, Deputy Director and Legal Counsel, Workforce for the Sydney Local Health District dated 2 July 2025;

(7) Statement of Megan White, Operational Nurse Manager at Concord Hospital dated 1 July 2025;

(8) Statement of SL, Transitional Nurse Practitioner at Concord Hospital dated 2 July 2025;

(9) Statement of MT, Registered Nurse at Concord Hospital dated 2 July 2025;

(10) Statement of AZ, Registered Nurse at Concord Hospital dated 2 July 2025;

(11) Statement of Anthony Dombkins, General Manager at Concord Hospital dated 2 July 2025;

(12) Statement of Michael Morris, General Manager at Canterbury Hospital dated 1 July 2025;

(13) Respondent's Outline of Submissions filed 2 July 2025; and

(14) Updated Closing Submissions filed 30 September 2025 (replacing the earlier version filed on 29 September 2025).

1. Each of the witnesses relied upon by the Respondent were required for cross‑examination.
2. The Respondent submitted that the Applicant was dismissed for multiple reasons identified in the termination letter dated 27 March 2025. Those reasons included allegations of bullying and harassment of the DNEs, breaches of confidentiality, inappropriate contact with SL during her period of parental leave, conduct said to be inconsistent with promoting a positive workplace environment, and conduct said to involve detrimental action taken against the DNEs after they had made complaints about him.
3. The Respondent submitted that the allegations arose in circumstances where multiple members of the DNE team had independently raised concerns about the Applicant's conduct, and that those concerns were not isolated or trivial. It submitted that the complaints reflected a pattern of behaviour over a sustained period of time rather than a single incident, and that the conduct complained of had an adverse impact on the DNEs and the functioning of the workplace.
4. The Respondent contended that aspects of the Applicant's conduct reflected an ongoing difficulty in accepting the clinical authority of Dr Kormas and a tendency to advance allegations that were not substantiated, while denying wrongdoing. It relied on that characterisation as forming part of the context in which the complaints arose, and as relevant to assessing the impact of the Applicant's conduct on workplace relationships and the functioning of the team.
5. The Respondent further contended that the Applicant was afforded procedural fairness throughout the investigation and the subsequent decision‑making process. It relied on the steps taken during the investigation, the provision of the Investigation Report, and the opportunity given to the Applicant to respond to the allegations before any decision was made.
6. The Respondent submitted that its statutory obligations under the HS Act and the Work Health and Safety Act 2011 (NSW) required it to provide and maintain a safe working environment, including addressing complaints of bullying, harassment and other inappropriate workplace conduct. It submitted that those statutory obligations informed the manner in which the complaints were investigated and the standards applied in assessing the Applicant's conduct.
7. The Respondent further relied on applicable NSW Health policies, including the Managing Misconduct Policy, the Code of Conduct and the Anti‑Bullying Policy, as setting out the behavioural standards expected of senior clinical staff. It submitted that those instruments provided the framework against which the Applicant's conduct was assessed, and that the Applicant was required, as part of his employment, to comply with those standards.
8. The Respondent submitted that the conduct relied upon constituted serious misconduct and involved breaches of the relevant policies. The termination letter referred to "serious breaches of policy" and noted that the Applicant's employment was subject to compliance with those policies. The Respondent also relied on the fact that the Applicant had completed mandatory Code of Conduct training in September 2023, submitting that he was therefore aware of the standards expected of him.
9. The Respondent maintained that, having regard to the nature of the substantiated conduct, the number of allegations made, and the impact on the DNEs and the workplace, dismissal was an appropriate disciplinary outcome. It rejected the Applicant's contention that the Respondent's findings regarding the Applicant's conduct were misconceived, overstated or taken out of context, and submitted that the evidence supported the findings relied upon in the termination letter. Those submissions are considered in light of the findings made below.

1. The Respondent submitted that, after the Applicant's termination, it became aware of a further allegation involving sustained sexual harassment of SL, and that this allegation provided additional support for the dismissal. The Applicant submitted that no weight should be given to that allegation, having regard to both its seriousness and the limited circumstances in which it was raised.
2. As a matter of principle, in resisting an unfair dismissal application an employer is not confined to matters known to, or relied upon, at the time of termination. Conduct which existed at the time of dismissal but came to light only subsequently may, in appropriate circumstances, be relied upon in assessing whether a dismissal was harsh, unjust or unreasonable (Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 430; [1995] HCA 24 (Byrne); Starr v Commissioner of Police [2001] NSWIRComm 226 at [320]-[321], applied in Commissioner of Police v Collins [2008] NSWIRComm 162 at [37]-[41]). Whether such material may properly be relied upon depends upon the circumstances in which it is raised and the conduct of the proceedings, including considerations of procedural fairness.
3. In the present matter, the Respondent referred to a post‑termination allegation involving sustained sexual harassment of SL. While the aspects of the allegation were put to the applicant in cross‑examination, it was not developed as a substantive evidentiary case and was not pressed or advanced in any meaningful way as a basis to justify the dismissal or to resist a finding of harshness.
4. Allegations of sustained sexual harassment are serious and require considerable caution. Findings of that kind should not be made unless they are necessary to the determination of the application. The Respondent did not seek to advance the post‑termination allegation as a determinative issue in these proceedings.
5. In light of the conclusions I have otherwise reached in relation to the allegations of misconduct that were known to, and relied upon by, the Respondent at the time of the termination of the Applicant's employment, it is not necessary to make findings regarding allegations that came to light after the termination for the proper determination of the application before me. Accordingly, no finding is made in relation to those allegations.

1. As the resolution of the application turns substantially on factual findings that require the acceptance or rejection of competing recollections of events, it is appropriate I make some observations about my assessment of the evidence, including matters bearing upon reliability.
2. The Applicant advanced his case on the basis that the determination of the application depended largely on the reliability of the evidence given by SL and the other DNEs as compared with his own. He contended that their recollections of events occurring over a number of years were affected by hindsight and subsequent perceptions, that contemporaneous documents undermined their accounts, and that primary reliance should therefore be placed on objective material rather than retrospective testimony.
3. The Respondent accepted that issues bearing upon reliability were central to the determination of the application but submitted that the assessment was not binary. It contended that it was open to the Commission to accept parts of a witness' evidence and reject others, and that SL's evidence was reliable when assessed in context and supported by corroborative testimony and contemporaneous material. The Respondent further contended that aspects of the Applicant's evidence were unreliable.
4. In assessing the evidence, I have borne in mind that acceptance or rejection of particular aspects of a witness' evidence does not require a wholesale acceptance or rejection of that witness' account. It is appropriate to assess the evidence issue by issue, having regard to contemporaneous material, corroboration, and the inherent probabilities.
5. Where oral evidence conflicts with contemporaneous records, I prefer the contemporaneous material. I have applied this approach both to contested factual issues and to other evidence of significance to the factual findings required to be made.
6. Credit observations are directed to those witnesses whose evidence bears materially on the factual findings required to be made.
7. Given the seriousness of the allegations and the consequences for the parties, I have approached the assessment on the basis that, although the applicable standard of proof is the balance of probabilities, the evidence must be sufficiently clear, cogent and persuasive, consistent with the approach described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).

1. The Applicant's account of the clinical and administrative delineation within the service was broadly corroborated by Ms White. Broadly, I accept his evidence on structural matters, including organisational roles and responsibilities. However, for the reasons that follow, I place reduced weight on his evidence in matters involving motivation, judgment, tone and interpersonal conduct.
2. That qualification is informed, in part, by the Applicant's manner and demeanour under cross‑examination. Early in cross‑examination he was asked whether he worked in a multidisciplinary service at Concord Hospital. His answers included the following:

Q. You worked in a multidisciplinary service, didn't you?

A. Yes.

Q. A multidisciplinary service offered by the hospital?

A. No.

Q. You worked in a multidisciplinary service at the hospital?

A. Yes.

Q. And you take issue with it being offered by the hospital?

A. The services were pioneered by me, not by the hospital.

Q. So you worked in a multidisciplinary service at the hospital?

A. Yes.

Q. And a multidisciplinary service is a service provided within the hospital at which you were employed, which consisted of a number of different professions. That's right, isn't it?

A. That is correct.

Q. And I'd suggest to you that the multidisciplinary service offered by the hospital?

A. In 2018, there was no multidisciplinary service. At this time after my appointment as Director of Diabetes, we collaborated in a team and we started the multidisciplinary services.

Q. You were a doctor in the hospital, weren't you?

A. Yes.

1. A further illustration arises from his evidence concerning statements he made about Dr Kormas. In cross‑examination, when asked whether he had called Dr Kormas a liar, the Applicant denied having done so, while accepting that he asserted Dr Kormas had knowingly provided information to the CE that was not true. The relevant exchange included the following:

Q. And you agree with me that you did call Dr Kormas a liar?

A. No, I did not.

Q. What I'd suggest to you is that what you're setting out in that portion of underlined writing on page 170 is that Dr Kormas is a liar?

A. I did not. I suggested the information, misinformation he provided to the brief to the CE was a lie, and I did agree that I could have used a better word.

Q. You say it's a lie and that Dr Kormas "saw fit to state it in the brief knowing it was not true"? You say that, don't you?

A. I did.

Q. And that's what you meant?

A. That was factually true.

Q. That's what you meant?

A. I did.

1. In responding in those terms, the Applicant initially resisted straightforward propositions before accepting their essential elements, while reframing his answers to emphasise his own perspective or phrasing rather than confining himself to a neutral account of the matters put. That approach illustrates a tendency, at times, to approach questions of fact in a manner shaped by personal perspective and interpretation. That tendency informs the weight I place on his evidence where matters of judgment, interpretation or context arise.
2. A significant component of the Applicant's case rested on his submission that the DNEs, particularly SL, were unreliable and that their evidence should be rejected where it conflicted with his own. He also submitted that aspects of Dr Kormas' evidence should be approached with caution. I have carefully considered those submissions. However, when assessed against contemporaneous documents, the full context of the communications relied upon, the corroborating evidence of several witnesses, and the internal consistency of their accounts on matters within their direct knowledge, many of the asserted deficiencies are not borne out.
3. The Applicant does not dispute that he sent the relevant emails and text messages referred to in the allegations below. Where the interpretation or characterisation of that material is disputed, I prefer contemporaneous documents and corroborated witness testimony.

1. The Applicant challenges the reliability of SL's evidence, submitting that her account is inconsistent with the tone and content of the text message exchanges in Exhibit A18 and that her evidence did not withstand cross‑examination. He contends that her account of their interactions should be rejected where it conflicts with his own and that the contemporaneous messages do not support her version of events. I have carefully considered those submissions. Having assessed SL's evidence in light of the whole of the material, including contemporaneous records and corroborative testimony, I am satisfied that her account is generally reliable, subject to important qualifications identified below.
2. The Respondent submits that SL's evidence was reliable when assessed in context and supported by the independent evidence of MT, AZ, Ms Wu, Mr Sommer and Ms White. It contends that her account was consistent with contemporaneous observations and communications and that the Applicant identified no persuasive basis for concluding that SL would fabricate her evidence.
3. The Respondent further submits that aspects of SL's presentation in the witness box, including difficulty recalling earlier events and visible emotional distress when describing her interactions with the Applicant, were consistent with the experiences she described. I do not treat these matters as determinative. They form part of the broader context in which I have assessed her evidence together with the contemporaneous documents and corroborative material.
4. The Respondent submits that SL's text messages should be understood as efforts to maintain courteous communication, avoid conflict or make matters easier for herself, rather than as indicating a willingness to engage in personal contact with the Applicant. It contends that this explanation accords with her evidence that she sometimes felt uncomfortable or pressured in her interactions with the Applicant, and that where SL's account conflicts with the Applicant's, her evidence should be preferred.
5. Exhibit A18 consists of a bundle of text message exchanges between SL and the Applicant over an extended period. Although Exhibit A18 is incomplete and comprises selected messages relied upon by the Applicant, it includes communications in which SL initiated contact and engaged in some non‑work‑related conversation. This material does not fully align with a characterisation of all contact as unwanted or unprompted, particularly given that the exchanges occurred over a number of years. As the exhibit does not purport to capture the full context of the communications between the Applicant and SL, I treat it with caution and rely upon it primarily as contemporaneous reference material rather than as a complete account.
6. The Applicant submitted that SL was not a witness of credit, while the Respondent placed reliance on the reliability of SL's evidence. In resolving differences in recollection, I have relied primarily on objective material, supplemented by consistent corroborative evidence where available.
7. Taking these matters together, I place substantial weight on SL's evidence where it is supported by contemporaneous documentation or independent testimony. Where her recollection conflicts with objective documentary material, particularly in relation to who initiated contact or the tone of communications, I prefer the contemporaneous material.

1. In cross‑examination, AZ accepted that she, SL and MT discussed matters before raising complaints against the Applicant in mid‑2024. Such discussions are not, of themselves, improper and are not uncommon in workplace contexts. However, they may affect the independence of recollection and are a relevant consideration when assessing the weight to be given to subsequent accounts. I do not find any evidence that these discussions involved collusion or the fabrication of allegations.
2. AZ's explanation of the email referred to in Allegation 1.28 developed during cross‑examination, including her acceptance that the reference to "savage" was an in‑joke between her and the Applicant. The email, which was sent late in the evening, used Japanese characters and included the phrase, "Figure out the above language, if you cannot, consider it as an abuse from a savage colleague." The unusual form of expression provides some contextual background to the way in which AZ understood and perceived the communication at the time.
3. Having regard to the whole of the evidence, I consider AZ to be a witness of credit. As with any witness, I approach her evidence with appropriate caution where it diverges from contemporaneous documentary material. I accept and place weight on her evidence where it is consistent with those records or corroborated by other evidence.

1. MT initially denied having discussed relevant incidents with SL and AZ but later accepted that such discussions had occurred. That inconsistency affects the weight to be given to her evidence to some extent. It does not, however, lead me to conclude that she was not a witness of credit.
2. Her evidence that she felt fearful of the Applicant must be considered alongside contemporaneous messages in which she expressed gratitude and regard for him, including describing him as "my best mentor". It is possible for a person to experience both appreciation and unease at different times. Nevertheless, the contemporaneous communications are relevant to assessing the nature, extent and persistence of the fear she described.
3. In these circumstances, I approach MT's assessment of the Applicant's behaviour with some caution and prefer contemporaneous documentary material where it conflicts with her recollection. Where her evidence is supported by contemporaneous records or corroborative testimony, I accept it.

1. Ms Wu only worked in the Diabetes Unit for about 18 months. She gave evidence that she formed her own concerns about the Applicant's conduct and that she observed SL becoming upset following certain interactions with him. I also accept that some aspects of her evidence were informed by information provided to her by others rather than her own experience. It became apparent that she was not aware of the full extent of SL's communications with the Applicant outside the workplace.
2. Ms Wu's evidence therefore reflects a combination of her own observations and perceptions, together with information she received from others. That context informs the weight I give to her evidence.

1. Ms White gave measured, careful and reliable evidence on structural and administrative matters. Ms White was not a complainant and gave her evidence in a restrained and professional manner, drawing appropriately on her experience and responsibilities. She confirmed that she, not the Applicant, managed SL's parental leave and return to work, that she deferred to the Applicant's clinical expertise, and that the Applicant was entitled, within reasonable bounds, to raise his clinical concerns.
2. Ms White accepted that reasonable minds may differ on models of care and that the Applicant's views regarding the Transitional Nurse Practitioner (TNP) model pre‑dated SL's involvement. Her evidence on these matters was informed, balanced and consistent with the contemporaneous material, and I place substantial weight on it.
3. Some aspects of her evidence concerning contested conduct were based on information provided by others rather than on her own direct observations. I therefore place limited weight on those aspects only. Otherwise, her evidence was reliable within its scope and provides important contextual support for my assessment of the issues in dispute.

1. Mr Sommer had some involvement in the workplace and directly witnessed certain interactions. I have generally accepted his evidence and have relied upon it where it concerned matters within his direct knowledge or observation. Where his evidence extended beyond those matters and reflected opinion, I limited the weight placed on it.

1. Dr Kormas presented as a measured and credible witness. He regarded the Applicant as a responsible and well‑regarded practitioner and made appropriate concessions where required by the documentary material. He was, at times, reluctant to accept that he had raised matters about the Applicant with Workforce, and his description of those communications reflected his own understanding rather than any attempt to be evasive. There was, however, some inconsistency in his reluctance to acknowledge the Applicant's Director of Diabetes role, notwithstanding clear documentary support, including his own 2022 performance agreement. His reference to concerns being raised on a number of occasions was not fully consistent with his written statement. These matters affect the weight I place only on those limited aspects of his evidence where it diverges from contemporaneous documents. Otherwise, I am satisfied that he gave his evidence candidly within the limits of his recollection.

1. Mr Morris' evidence was directed principally to the investigation process and the findings reached through that process. He was unable to recall all the detail of particular allegations and aspects of the material relied upon. To the extent that his evidence relied upon the conclusions of the investigation rather than an independent engagement with the underlying material before the Commission, I place limited weight on it.

1. Mr Rudd gave evidence primarily concerning his communications with the Applicant and the recommendation he made to the CE. Those matters are of particular significance to the Applicant's victimisation claims. The Applicant made various submissions about Mr Rudd's evidence, the significant aspects of which are addressed further in dealing with the Applicant's victimisation claim. I am satisfied that he communicated clearly that he would not disclose the substance of his recommendation to the Applicant's solicitor, and that the Applicant could commence proceedings at any time should he choose to do so.

1. As CE, Ms Willcox exercised delegated authority on behalf of the Health Secretary in Workforce matters, including termination decisions. Her evidence was directed principally to the process by which the decision to terminate the Applicant's employment was made. The termination letter records that she reviewed the material provided to her and considered the Applicant's response before making that decision. Having regard to the short period between receipt of the brief and the making of the decision, and the breadth of her operational responsibilities, she proceeded on the basis of the advice from Mr Rudd and the investigation findings available to her. She made appropriate concessions when necessary.

1. Misconduct is not defined in the NSW Health Code of Conduct or in any NSW Health Policy Directive. Those instruments articulate expected standards of behaviour and prescribe processes for managing allegations, but do not define whether particular conduct constitutes misconduct or serious misconduct.
2. Whether conduct amounts to misconduct is determined by reference to established employment and industrial law principles, as applied by the Commission. Consistent with Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66, misconduct involves a wilful or deliberate breach of duty, or a wilful or reckless disregard of the standards of behaviour the employer is entitled to expect.
3. Misconduct is more than mere error, poor judgment, negligence or unsatisfactory performance, and not every breach of a policy, directive or guideline will amount to misconduct (see, for example, King v Catholic Education Office, Diocese of Parramatta [2014] NSWIRComm 1010). A breach of policy will constitute misconduct where the proven conduct, assessed objectively and in context, is sufficiently serious and involves an element of culpability.

1. Where an employer relies on misconduct to justify dismissal, the onus rests on the employer to establish that the alleged conduct occurred (Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Pastrycooks Employees Union v Gartrell White (No 3) (1990) 35 IR 70). Although an applicant bears the ultimate burden of establishing that a dismissal was harsh, unreasonable or unjust (Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273), it is for the employer to prove the misconduct relied upon. These principles were not in dispute.
2. The applicable standard of proof is the civil standard. However, the Commission must reach a positive state of satisfaction, having regard to the seriousness of the allegation and the gravity of the consequences of a finding of misconduct, consistent with Briginshaw and M v M (1988) 63 ALJR 108.
3. In determining disputed factual allegations, particularly where the allegations are serious and may carry significant consequences, I have adopted the above approach: that is to say, while the standard of proof remains the balance of probabilities, reasonable satisfaction is informed by the nature of the allegations, the gravity of the conduct alleged, and the quality of the evidence relied upon. Findings of serious wrongdoing require clear and persuasive evidence.

1. The Commission is not bound by the conclusions of an investigator or an internal decision‑maker. Its task is to determine, on the evidence before it, whether the alleged conduct is established to the requisite standard and, if so, whether it constitutes misconduct within the meaning of the principles set out above.
2. The fact that conduct is, or is not, characterised as a breach of policy in an investigation is not of itself necessarily determinative. However, the presence or absence of a substantiated policy breach may be a relevant consideration in assessing whether the conduct has been established and whether it amounts to misconduct.

1. The concepts of harshness, injustice and unreasonableness are distinct and require separate consideration. As explained in Byrne, a dismissal may be harsh in its effect on the employee, unjust if the employee did not engage in the conduct alleged, or unreasonable if the decision was not open on the evidence or was based on unreasonable inferences.

1. There was debate between the parties as to how the Commission should deal with evidence concerning allegations that were not upheld by the Respondent, whether by the investigator or the delegated decision‑maker. The Respondent submitted that the Commission was entitled to consider all such material in determining the application.
2. The Respondent further submitted that the Commission's task in determining an unfair dismissal application grounded in alleged misconduct involves three stages. First, the Commission must make findings as to what occurred and whether the employee engaged in misconduct. Second, the Commission must determine whether, having regard to those findings, the dismissal was harsh, unjust or unreasonable. Third, if the dismissal is found to be unfair, the Commission must determine what, if any, relief should be granted. I accept that this reflects the orthodox analytical framework to be applied.
3. The Respondent also submitted that evidence concerning the broader relationship between the parties is often of limited assistance in determining whether specific allegations of misconduct are established or whether a dismissal is harsh, unjust or unreasonable, although such evidence may assume greater relevance when considering the practicability of reinstatement or re‑employment. I agree and have approached the evidence in this matter on that basis.
4. Both parties relied on contemporaneous documents and referred to the observations of Lee J in Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873. His Honour described contemporaneous documents as often being of greater assistance than testimony based on recollection, as a helpful working hypothesis rather than an inflexible rule. I agree. As a general proposition, contemporaneous records may be preferred to recollection, given the susceptibility of memory to distortion, particularly once litigation has commenced. However, the weight to be given to such records depends on their nature and context. Documents created in the ordinary course of business may provide a neutral account of events, whereas interpersonal communications may reflect motive, strategy or self‑presentation and are not necessarily more reliable than sworn oral evidence. I have considered the contemporaneous material together with the oral evidence and assessed the weight of each in determining the allegations in this matter.
5. In assessing each allegation, I have applied the same evidentiary standard, irrespective of whether the investigator or the decision‑maker characterised the conduct as a breach of policy. Each allegation was assessed on the evidence before the Commission and accepted only where I was independently satisfied, to the requisite standard, that the conduct occurred. Against that background, I turn to the assessment of the evidence and the allegations relied upon.

1. I note some uncertainty as to which allegations were substantiated and relied upon in the decision to terminate the Applicant's employment. That uncertainty arose principally because both the Table of Findings at CB 1107 in the Investigator's report and the letter of termination set out matters that were found to be substantiated on a factual basis but were not identified as breaches of NSW Health policy. In addition, three allegations were subsequently characterised as breaches of policy by Mr Morris. These variances are addressed below. They raised the question of whether, and on what basis, allegations substantiated in fact but not characterised as policy breaches were treated as misconduct or relied upon in the decision to terminate the Applicant's employment.
2. In closing submissions, the Respondent submitted that all findings recorded in the investigation formed part of the material available to the decision‑maker and that it was entitled to rely on all substantiated findings, whether or not they were identified as policy breaches, including for the purposes of remedy. These issues occupied considerable time during the proceedings and contributed to a lack of clarity concerning the precise allegations relied upon.
3. For the reasons set out in this decision, I have dealt with the allegations by reference to those substantiated as breaches of policy and, in addition, those allegations which the Respondent expressly relied upon and pressed at the hearing, notwithstanding that they were not substantiated as breaches of policy by the Investigator.
4. Given the number of allegations and the manner in which they were particularised, I address each allegation by reference to the parties' respective positions and make findings in relation to those allegations relied upon by the Respondent, whether or not characterised as breaches of policy.

1. That you have engaged in bullying and/or harassment behaviour of CRGH Diabetes Nurse Educators (DNEs) staff:

1.3 Between June 2022 and July 2022, you applied 'immense pressure' on AZ, Registered Nurse, and MT, Registered Nurse, to apply for the TNP role, despite them not meeting the eligibility criteria, including:

(b) On 20 July 2022, you emailed AZ and MT with a perceived threatening statement: "P.S. I hate to say this, but please note that if one of you do not get in tomorrow, we are heading for a rocky future".

1. In respect of Allegation 1.3(b), the Applicant admits sending the relevant email but denies that it carried any threatening implication. He contends that the phrase "we are heading for a rocky future" reflected concerns about operational risk arising from longstanding staffing shortages and the failure to appoint an experienced internal candidate to the vacant TNP role. The Applicant relies on evidence that the team had been unable to recruit a suitable candidate after several attempts, and on concessions made in cross‑examination, particularly by AZ, to submit that the email cannot reasonably be construed as threatening. AZ accepted in cross‑examination that, to the extent the Applicant encouraged MT to apply for the TNP role, this was framed as support. AZ also agreed that, if an external applicant were appointed, MT might have lost her position in the Diabetes team, and that the Applicant's comments were made against that background.
2. The Respondent relies predominantly on the evidence of AZ given on 29 July:[2]

"He had multiple conversations with myself and myself and MT, telling us that we needed to apply for this position, and he said that he would - when we told him that we weren't able to, that we didn't have the credentials, and we didn't want to, he told us that it didn't matter, the nursing executives, he could get them removed if they didn't do what he wanted, and it wasn't just one conversation. It was multiple conversations with him putting pressure on us.".

1. The Respondent also relies on the email dated 20 July 2022[3] together with the evidence of both AZ[4] and MT[5] that they received an email from Dr Suryawanshi stating "if one of you do not get in tomorrow, we are heading for a rocky future".
2. The Applicant accepts that the email correspondence was sent but submits that the allegation is based on an incorrect interpretation of its tone and meaning. He contends that the phrase "we are heading for a rocky future" should not be characterised as threatening, but rather as an expression of concern that the team would likely face difficulties if an experienced internal candidate were not successful.
3. Having considered the evidence, I am satisfied that the Applicant applied significant and unwelcome pressure on AZ and MT to apply for the TNP role at a time when both had made clear that they did not meet the eligibility criteria and did not wish to apply and this caused distress. The description of that pressure as "immense" may somewhat overstate the position. However, the repeated conversations encouraging them to apply, including a late‑night conference call despite their stated reluctance, together with the email of 20 July 2022 had the effect of applying unwanted pressure. This conduct occurred in the context of a clear power imbalance between the Applicant and AZ and MT. In that context, the email would reasonably have been understood by the recipients as directed at them personally, rather than as a general comment about operational risk. Where the Applicant occupied a position of seniority and sought to exercise authority over the DNEs, and where the conduct involved repeated urging to pursue a role they had expressly stated they did not wish to seek, the behaviour was unreasonable and foreseeably caused distress. I am therefore satisfied that Allegation 1.3(b) is substantiated and that, in the circumstances, the conduct constituted bullying.

(c) You told MT that if someone other than AZ or MT were appointed to the TNP/NP role, then MT wouldn't be considered for an ongoing job within the diabetes centre.

1. The Respondent relies on MT's evidence that the Applicant told her and AZ that if an external candidate were appointed to the TNP position, she would not be considered for a permanent position within Diabetes Education Centre.[6] It also relied on the evidence of AZ that the Applicant stated that MT would not be able to continue working in the Diabetes Education Centre if an external candidate was appointed.[7]
2. The Applicant submits that Allegation 1.3(c) was not substantiated as a breach of NSW Health policy by the Investigator[8] and, on that basis, did not form part of the Respondent's termination decision. He denies making the statements attributed to him and submits that MT's evidence should be treated with caution given the absence of any contemporaneous record of the alleged conversation and the limited extent of corroboration.
3. The specific allegation is supported primarily by MT's account, and I approach it with appropriate caution given the absence of corroborating evidence. On examination AZ's evidence does not clearly support the specific comment alleged. I also take into account that the allegation was not substantiated as a breach of policy by the Investigator. There is no contemporaneous record of the alleged exchange, and the matter was not the subject of detailed examination in cross‑examination of the Applicant. Having regard to these matters, the seriousness of the allegation, and the need for clear and persuasive evidence before making a finding of this kind, I am not satisfied that the Applicant told MT that she would not be considered for an ongoing role within the Diabetes Centre if someone other than AZ or MT were appointed to the TNP/NP position. In those circumstances, I am not satisfied that this conduct occurred, or that it amounted to applying the level of pressure alleged or constituted bullying or harassment. Allegation 1.3(c) is therefore not substantiated and does not constitute misconduct.

(d) You told AZ and MT that you could have Ms Megan White, Operational Nurse Manager (ONM) CRGH or Ms Helen Goldsack, (former) Director of Nursing (DON) CRGH, removed from their roles if they opposed either of their applications for the TNP role.

1. The Respondent relies on the evidence of AZ[9] and MT,[10] each of whom gave evidence that the Applicant made the statements attributed to him. It relies in particular on AZ's evidence in chief and submits that her account was maintained under cross‑examination.
2. The Applicant submits that the allegation was not put to him in cross‑examination and should therefore be approached with caution. He denies making the statements and contends that his denial should be accepted, submitting that he had no authority over the employment of either Ms White or Ms Goldsack and could not have caused their removal from their positions.
3. The allegation rests solely on oral evidence, which I approach with appropriate caution. I take into account that the allegation was not put to the Applicant in cross‑examination and that there is no contemporaneous record of the statements attributed to him. AZ and MT nevertheless gave direct and consistent evidence that the Applicant stated he could have Ms White or Ms Goldsack removed from their positions if they opposed either of their applications for the TNP role, and the effect this had on them. Their accounts were internally coherent and aligned with the conduct found in Allegation 1.3(b), including the pressure placed on them to apply for the role despite their stated reluctance and ineligibility.
4. Having regard to the whole of the evidence and my credit observations, I am satisfied on balance that the statements were made. The Applicant had no authority to remove either Ms White or Ms Goldsack; however, any such statements were capable of conveying that adverse consequences might follow if the DNEs did not comply. In circumstances of a clear power imbalance, and where AZ and MT had indicated that they did not wish to apply for the role, the statements were capable of creating apprehension and applying pressure inconsistent with their stated wishes. Viewed in context, and together with my finding in reaction to allegation 1.3 (b) I am satisfied that the behaviour constitutes bullying and or harassment. Allegation 1.3(d) is therefore substantiated.

1.4 In June and July 2022, you pressured SL, Transitional Nurse Practitioner (TNP) about returning to work full-time after her maternity leave, including requesting a specific plan and offering to write to her childcare provider to secure full-time placement.

1. The Respondent submitted that an email dated 15 June 2022 stating "Please provide a rough idea when you would be able to come back full time - this will help us to advertise for your mat relief (0.4) FTE position", was evidence that the Applicant wished SL to return to work full time.[11] The Respondent further relied on the evidence of SL that the Applicant wanted her to return to work full time[12] and that, when she explained that securing childcare placements was difficult, the Applicant said he would write to the childcare provider to seek to secure a full‑time placement.[13]
2. The Respondent also cited a text message exchange between Dr Suryawanshi and SL from 2020. In the extract cited, SL states that "I wish I could come back sooner but sorting childcare is so difficult at this stage... Will this cause you inconvenience??", to which the Applicant replies "We are absolutely short staffed, ... Anyways do what you need to do, childcare situation is also important".[14]
3. The Applicant submitted that this allegation was not substantiated as a breach of policy by the Investigator,[15] and therefore did not form part of the Respondent's decision to terminate.
4. This allegation was not substantiated as a breach of policy by the Investigator. Nor did the Respondent pursue this allegation in these proceedings or identify any specific basis for seeking to rely upon it. To the extent the allegation was nevertheless pressed, the evidence does not establish that the Applicant pressured SL to return to full‑time work or sought to influence her childcare arrangements in a manner that could properly be characterised as bullying or otherwise inappropriate conduct. In the absence of clear and persuasive evidence that the Applicant placed pressure on SL beyond ordinary workplace communications about returning to work from maternity leave, I am not satisfied that the conduct occurred as alleged or that it constituted misconduct. Allegation 1.4 is therefore not substantiated.

1.5 In August 2022 upon SL's return from maternity leave, you questioned SL with words to the effect "does your husband not know how to use contraceptive or do I need to talk to him?" and questioned if she would be having more children. SL informed you "no we have two kids that is enough" and you sarcastically responded, "well done, thank you very much".

1. The Respondent relies on SL's evidence that, upon her return from maternity leave in August 2022, the Applicant said to her words to the effect of "does your husband not know how to use contraceptive or do I need to talk to him?", and that he also asked whether she intended to have more children.[16] The Respondent also relies upon the evidence of MT and AZ that SL recounted this comment to them.[17]
2. The Applicant denies making the statements alleged. He gave evidence that he recalled what he described as a friendly and jovial conversation on 9 August 2022, which he said was initiated by SL and during which she had "attempted to tease" him.[18] He stated that, in the course of a longer exchange, he said words to the effect that pregnancy was a personal decision, that if she became pregnant she would not need to worry about work, and that accidental pregnancies could be avoided, which he said was intended jokingly. The Applicant also gave evidence that, in his clinical practice, he commonly provided contraceptive advice to patients with high‑risk medical conditions. He submits that any discussion regarding contraception arose within that context and that the tone of his interactions with SL at the time was cordial and respectful. In support of that contention, the Applicant relied on a text message in which SL enquired about his father's ill health during the same period,[19] which he said reflected the nature of their working relationship at that time.
3. The Respondent submits that the Applicant's characterisation of the alleged comments as jovial should be rejected. It contends that the Applicant either sought to downplay the conduct or did not demonstrate appropriate insight into the potential effect that such comments could have on SL.
4. This allegation rests on conflicting accounts. While MT and AZ provide some support for SL's version, their evidence is confined to what SL relayed to them after the event rather than to any direct observation. I therefore treat that evidence as of limited weight. The Applicant denies making the statements alleged but accepts that he made comments of a similar nature in what he described as a friendly and jovial exchange initiated by SL. His account included specific detail as to both the date and content of a conversation said to have occurred several years earlier.[20] It is unlikely that he would recall the date and detail of what he characterised as a normal conversation with that level of precision. By contrast, it is plausible that SL would recall the exchange if she found it upsetting and later mentioned it to her colleagues.
5. I note the Applicant's assertion that he "always spoke to [his] colleagues in a respectful manner".[21] However, having regard to findings I have made elsewhere in these reasons concerning the Applicant's interactions in the workplace, I do not accept that his interactions were invariably respectful. That context informs the assessment of the plausibility of the competing accounts.
6. I also take into account that SL did not raise this allegation at the time. That delay is relevant but not determinative. The evidence indicates that the DNEs did not raise formal concerns until further issues emerged in 2023 and 2024, and that SL did not view this exchange as a discrete incident but as part of wider concerns regarding workplace interactions with the Applicant. At the relevant time, SL had recently returned from maternity leave and gave evidence that she sometimes sought to maintain amicable relations in order to avoid conflict. In that context, the delay does not undermine the plausibility of her account.
7. Having regard to my earlier credit observations and the circumstances in which the exchange occurred, including the evident power imbalance between the Applicant, a senior doctor, and SL, who was being mentored by him, I accept SL's evidence. The comments attributed to the Applicant were personal and inappropriate and were reasonably capable of causing discomfort or distress. I am satisfied that the comments were made and that the conduct constituted bullying or harassment. Allegation 1.5 is therefore substantiated.

1.8 In February 2023, you criticised SL's English skills following a presentation, enquired about her husbands proficiency in English, suggested that she should attend English classes and directed her to send emails to him to proofread before they were sent outside the DNE team.

1. The Respondent relied on SL's evidence that the Applicant criticised her English skills following a presentation, enquired about her husband's English proficiency, suggested that she attend English classes, and told her that he would proofread her emails before they were sent outside the DNE team.[22]
2. This allegation was not put to the Applicant in cross‑examination. The Applicant denied SL's account[23] and relied instead on his own evidence and a subsequent text message exchange, which he submitted was inconsistent with the conduct alleged.[24]
3. The Applicants evidence was that the relevant interaction occurred when SL interrupted him during a patient clinic, and that he told her it was important that he not be interrupted while seeing high‑risk patients. He later sent a text message to SL stating:

"Hope you don't mind me speaking a bit direct this afternoon? I know you are working hard to improve your skills and also understand the pressure you must be going through."[25]

"Thank you for taking the time to speak with me this afternoon. I understand that I may not have met your expectations just yet, but assure you that I am working hard to improve. I would like to have a regular meeting with you to up skills myself... Thank you again for your support." [26]

1. The Applicant submitted that this exchange undermines SL's account and that her version should be rejected. He relied in particular on the fact that SL did not include the text message exchange in her statement. When asked in cross‑examination why she had omitted it, SL initially responded that she "would have missed it or can't recall what happened", before later explaining that she "felt disgusted typing this message... I was trying to be on his good terms because I was desperate".[27]
2. Having considered the evidence with the caution required in the circumstances, I am satisfied that Allegation 1.8 is substantiated. SL's evidence on this issue was consistent and internally coherent. Although there was no independent corroboration, I have taken that limitation into account. It does not preclude a finding where the principal witness is otherwise accepted as reliable following careful scrutiny.
3. The Applicant's denial of the specific comments alleged, together with SL's omission of the text message exchange from her statement, were matters requiring consideration. SL's explanation for that omission was unsatisfactory. However, when assessed in light of the evidence as it bears on this allegation, I am not satisfied that the omission materially undermines the reliability of her account.
4. The text message exchange relied upon by the Applicant does not materially contradict SL's evidence. While the messages from SL are polite and conciliatory in tone, they do not address the substance of the interaction alleged and are not evidence of the words used by the Applicant. They are therefore of limited assistance in resolving the factual dispute.
5. In circumstances where the Applicant was a senior clinician and mentor, the exchange is not inconsistent with SL's evidence that the interaction was unwelcome. The messages are capable of being understood as a measured and professional response directed to maintaining a functional working relationship, rather than as evidence confirming or refuting the conduct alleged. On that basis, the exchange does not undermine SL's credibility.
6. The matter is finely balanced. Taking the evidence relevant to this allegation as a whole and approaching it with the necessary caution given the absence of corroboration, I am satisfied that the conduct occurred substantially as SL described. Viewed objectively and in context, the comments and directions were inappropriate, fell below the standard expected of the Applicant in his role as a senior clinician and mentor, and amount to misconduct.

1.9 On 21 June 2023, you coerced SL and demanded to write in her presentation that there were no DNE only clinics at RPAH and no General Practitioner correspondence letters sent by RPAH Diabetes Centre, which was inaccurate and contrary to what SL and AZ had observed.

1. The Respondent relied on SL's evidence that she had observed a DNE only clinic at Royal Prince Alfred Hospital (RPAH),[28] and on AZ's evidence that she too had observed such a clinic.[29]
2. The Respondent also relied on the email chain between the Applicant and SL, and on SL's evidence that she felt coerced by the Applicant in relation to the content of her presentation.
3. The Respondent submitted that the email exchange demonstrates the Applicant directing SL to amend her presentation to the implementation committee, including the instruction to focus on "No diabetes educator (i.e. nurse only) clinics".[30] The Respondent also relied on a text message the Applicant sent to MT stating, "[SL] is meeting Megan at 1.30 PM, please try and make sure she does not do the damage. I think she will as she is meeting her before meeting us and will definitely say the wrong words".[31] The Respondent submitted that the reference to "damage" was a reference to the existence of DNE only clinics and that the message reflected an intention by the Applicant to influence SL to use the "right words".
4. The Respondent further submitted that at the meeting on 21 June 2023 the Applicant demanded that she amend her presentation to state, incorrectly, that there were no DNE only clinics at RPAH.[32] The Respondent relied on the email directing her to send her presentation to the Applicant before presenting it,[33] and on SL's evidence that the Applicant subsequently sent her a revised draft.[34] The Respondent relied on the inserted line "no DNE clinics at RPAH" in that version.[35]
5. The Applicant submitted that it was SL and the other DNEs who informed him that there were no DNE only clinics at RPAH. He relied on SL's activity log, which recorded "No"[36] in response to the question "Do they have DNE clinics for seven referral reasons like Concord?" and also recorded "No" under "Do they have DNE only clinics". [37]
6. The Applicant also relied on SL's oral evidence in cross‑examination that she did not see a DNE only clinic at RPAH.[38] The Applicant submitted that SL's suggestion that he may have edited the activity log had no basis in evidence and should be rejected.[39]
7. SL did accept in cross‑examination that she did not observe a DNE only clinic on the day she attended RPAH, which creates uncertainty about the basis on which she regarded the requested changes as incorrect. I have also had regard to the text message sent by the Applicant to MT that "[SL] does not do the damage" while that language reflects poor judgment and was inappropriate, it does not go to the substance of the allegation or materially assist in determining whether the conduct alleged occurred.
8. The email exchange shows the Applicant engaging with the content of SL's presentation, including requesting her draft, and SL understood him to have provided a revised version containing the statement "no DNE clinics at RPAH." However, the activity log, SL's concession in cross‑examination, and the ambiguity surrounding the text message create doubt as to whether the Applicant was directing her to include information she believed was inaccurate and contrary to what she had observed or whether the exchange reflected differing understandings of the information available at the time. Further, as I understand the evidence, SL later sent an email to Dr Kormas in response to an enquiry, confirming that the DNEs simply did not observe a 'DNE only' clinic during their visit to RPAH.
9. Proceeding with the necessary caution, and noting that the matter is finely balanced, I am not satisfied that the Applicant coerced SL or required her to include material she believed to be incorrect as alleged. In any event, even if aspects of the conduct were established, I am not persuaded that it would amount to misconduct when assessed objectively and in context. The allegation is therefore not substantiated.

1.11 On 19 July 2023, you allegedly coerced and pressured SL to write an email to acknowledge his support of the DNEs which she sent at 1:18pm. Immediately following this you responded to SL by text at 1.20pm, stating "Well written!".

1. The Respondent submitted that SL's evidence[40], including the evidence she gave in cross‑examination, supports the allegation that Dr Suryawanshi coerced or pressured her to draft an email emphasising how supportive he had been.[41]
2. In her reply evidence, SL stated that she attended the meeting on 18 July 2023 and that, after the minutes were circulated, the Applicant asked to speak with her the following day. She said the Applicant insisted that she send an email to Dr Kormas stating how supportive he had been. SL said she was reluctant to do so, but that the Applicant told her that failing to send the email would make matters difficult for the DNEs because, according to him, Dr Kormas intended to increase their workload without increasing staffing. She said that the Applicant directed her as to the content of the email.
3. The Respondent also relied on the text message exchange between Dr Suryawanshi and SL, including a message stating "Well written!". The Respondent further relied on the evidence of Ms Wu, who said that on 19 July 2023 SL appeared distressed and told her, and AZ, that she had been required to send the email. Ms Wu's evidence was relied upon as providing some support for SL's account.
4. The Applicant, on the other hand, submitted that SL approached him after the meeting and said she was unhappy that Dr Kormas had taken all the credit for the nursing recruitments and had not included diabetes as an agenda item in the minutes of the meeting at Concord Hospital on 18 July 2023. This was denied by SL.
5. The Applicant further submitted that, during cross‑examination, SL initially denied drafting the email before later revising her evidence and stating that she wrote it and chose the wording to reflect everyone's support. The Applicant submitted that this shift in SL's account undermines the reliability of her evidence and demonstrates a lack of substance to the allegation.
6. I do not regard SL's evidence in cross‑examination as contradicting the account she gave in her reply statement. In cross‑examination, she accepted that she amended the email after discussing it with the DNEs but said that the email still reflected what the Applicant intended. That qualification does not, in my view, displace the essence of her earlier account. This is supported by the notes included in Annexure JW to Ms Wu's statement. The refinement of the wording after speaking with colleagues is not inconsistent with SL's evidence that she felt pressured to send the email acknowledging the Applicant's support of the DNEs and that the substance of the email was directed by him. I have taken that inconsistency into account, but do not consider it sufficient to undermine the reliability of her evidence.
7. Proceeding with the requisite caution, and having considered the evidence relevant to this allegation, I accept that SL felt pressured to prepare the email in the terms reflected in the final document. Her account is supported, in relevant respects, by the evidence of Ms Wu, who recorded in her notes that SL appeared distressed and reported matters to her on 19 July 2023. While there were inconsistencies in aspects of SL's evidence, including her acknowledgment that she made some amendments to the email, those matters do not, in my view, displace the reliability of her account. On the evidence, I am satisfied that the Applicant engaged in the conduct alleged, that such conduct constitutes misconduct, and that the allegation is therefore substantiated.

1.12 On 4 August 2023, you insisted that MT see a patient who was a former colleague, instead of SL despite MT disclosing the prior relationship with the patient. You interrupted MT when she was receiving a handover from a Registrar and forcefully insisted that she attend the patient.

1.13 With reference to 1.12, on 4 August 2023, you aggressively pointed at each SL, MT and AZ during a meeting about the patient and said "you need to speak to EAP if I am making you uncomfortable to see patients".

1. The Respondent relied on the evidence of SL that, when she attended to see the patient, the Applicant instead asked for MT or AZ.[42] The Respondent also noted that, in cross-examination, the Applicant accepted that SL was competent to assist the patient.[43] The Respondent further relied on SL's evidence that the Applicant interrupted MT whilst she was receiving a handover from a Registrar.[44]
2. The Respondent relied on SL's evidence, both in her witness statement[45] and in cross-examination that after the incident with the patient, Dr Suryawanshi pointed his finger at SL, MT and AZ.[46] The Respondent also relied on MT's evidence which she maintained in cross-examination that the Applicant aggressively pointed his finger at her.[47]
3. The Respondent submitted that the evidence of SL,[48] MT,[49] and AZ[50] corroborated that the Applicant said, "if you feel uncomfortable seeing patients you should speak to EAP".
4. The Applicant denied the allegation and relied on the cross-examination of MT. The Applicant submitted that MT confirmed that there was no conflict of interest.[51] The Applicant further submitted that, according to MT's evidence, the Applicant may have said, "if you feel uncomfortable at work, you can always seek assistance".[52] In addition, the Applicant submitted that MT could not recall if the Applicant had aggressively pointed at her.[53] The Applicant also drew attention to the fact that it was MT who apologised after the interaction, not the Applicant.[54]
5. I note that MT apologised to the Applicant following the interaction. I do not regard that as conclusive, particularly having regard to the evidence that the DNEs were, at times, attempting to appease the Applicant in his capacity as Director of Diabetes and a senior clinician. Even if the Applicant's comment was to the effect that, "if you are uncomfortable seeing a patient you can seek assistance", I consider that such a remark was unusual and inappropriate in the circumstances.
6. Having considered the evidence relevant to these allegations, I am satisfied that the allegations are substantiated. I accept SL's evidence that, when she attended to see the patient, the Applicant asked that MT attend, or alternatively AZ, and that he interrupted MT while she was speaking with a Registrar. I also accept SL's evidence, given both in her witness statement and in cross‑examination, that after the incident the Applicant pointed his finger at SL, MT and AZ. That account is supported by MT's evidence in cross‑examination subject to the qualifications she expressed. I further accept the evidence of SL and AZ that the Applicant said, "if you feel uncomfortable seeing patients you should speak to EAP."
7. Those qualifications do not undermine the material parts of the evidence accepted above. I also note that, even on the Applicant's own account, aspects of his conduct were unusual and not readily explicable, including his decision to leave the patient and walk with SL back to the Diabetes Centre before approaching MT. I am satisfied that the Applicant engaged in the conduct alleged in Allegations 1.12 and 1.13, that the conduct was inappropriate and unwarranted, and that it constitutes misconduct. The allegations are therefore substantiated.

1.14 For a period of one month between 5 August 2023 and 4 September 2023, you did not speak to the DNEs and allegedly refused to provide clinical advice for any patients. You allegedly instructed DNEs to refer to the Registrars for any clinical advice and titrations, including your private patients.

1.15 On 13 September 2023, you requested to meet with the DNEs about the incident on 4 August 2023 and disclosed that you 'needed a break' from the DNEs because there was a 'divide between nursing and medical' and you had deleted their phone numbers.

1. The Respondent relied on the evidence of SL that the Applicant was not available to discuss patients during this period, [55] and on the evidence of SL and AZ that neither of them had a conversation with the Applicant between 4 August 2023 and 4 September 2023.[56] The Respondent submitted that MT's evidence was that, during this time, the Applicant refused to review his patients with the DNEs or to adjust their medications based on information obtained during patient reviews.[57]
2. The Respondent submitted that the evidence of AZ, SL and MT, was that, in a meeting with the three DNEs, the Applicant said that he needed a break from them because there was a divide between nursing and medical, and that he had deleted their phone numbers.
3. The Applicant denied the allegation and relied on emails and text messages sent by him to the DNEs, in the period between 5 August 2023 and 4 September 2023.[58] The Applicant also relied on a message sent by SL on 1 September 2023 inviting him to her birthday.[59] The Applicant further submitted that an email he sent to SL, MT and AZ on 6 September 2023 although sent after the relevant period, arranging a celebration for their permanent appointments, was indicative of a functional working relationship.[60]
4. The Applicant relied on AZ's evidence in cross‑examination, in which AZ agreed that the Applicant may have said that divisions between the medical and nursing teams would not support patient care, and that the meeting ended on a neutral note.[61]
5. The investigator found Allegation 1.14 only partially substantiated as a breach of policy. Having considered the evidence with the appropriate degree of caution, I reach a similar conclusion. I accept the evidence of SL and AZ that their interactions with the Applicant were limited between 5 August 2023 and 4 September 2023. I am also satisfied that the Applicant said there was "a divide between nursing and medical", and that he had deleted their phone numbers.
6. However, I am not satisfied that the Applicant refused to provide clinical advice to the DNEs for all patients during this period, or that he issued a blanket instruction directing them to refer all clinical matters, including those relating to his private patients, to Registrars. The emails and text messages relied upon by the Applicant, together with the message from SL on 1 September 2023 and the email of 6 September 2023 (albeit outside the period of the allegation) arranging a celebration, indicate that communication and at least some professional engagement continued. The Applicant's evidence was that, following the incident on 4 August 2023, he was in shock about the behaviour he observed and decided to refrain from overly familiar communications with the DNEs.
7. Having considered the evidence, I find that the Applicant withdrew from regular interaction with the DNEs and limited his involvement for a period of time. However, I do not accept that he wholly disengaged from providing clinical advice or imposed a blanket prohibition on communication.
8. Accordingly, Allegation 1.14 is substantiated only to the extent that the Applicant materially reduced his engagement with the DNEs. It is not substantiated in relation to the allegation that he refused all clinical involvement or directed that all matters be referred to Registrars.
9. The evidence in relation to Allegation 1.15 was broadly consistent across the accounts of SL, AZ and MT. Each gave evidence that, at the meeting on 13 September 2023, the Applicant said that he "needed a break" from the DNEs, that there was "a divide between nursing and medical", and that he had deleted their phone numbers. Their accounts were aligned in substance and were not materially challenged. I do not find AZ's evidence in cross‑examination to be inconsistent with her earlier account; she agreed that the Applicant may have said that divisions between the medical and nursing teams would not support patient care, and that the meeting ended on a neutral note. Her evidence remained consistent as to what was said at the meeting, and that she was "shocked" during the meeting. Having considered this evidence with the appropriate degree of caution, I am satisfied that the Applicant made the statements alleged and that the conduct constituted misconduct. Allegation 1.15 is therefore substantiated.

1.16 In October 2023, you threatened to report SL to the CRGH DON and SL's university and stop support for her course as a TNP.

1. The Respondent relied on SL's evidence that, in October 2023, the Applicant threatened to report her to the Director of Nursing and to her University, and to withdraw support for her course as a TNP.[62]
2. The Applicant submitted that there was no supporting documentary material to support this allegation and he relied on emails sent by SL on 31 October and 1 November 2023, in which she thanked him for his mentorship, as being inconsistent with the conduct alleged.[63] The Applicant submitted that the explanation for the emails provided by SL in cross-examination should not be believed.[64]
3. Having considered the evidence with the appropriate degree of caution, I am not satisfied that the Applicant made the alleged threat. The allegation rests solely on SL's account and is not corroborated by any contemporaneous documentation. Further, the emails sent by SL on 31 October and 1 November 2023, in which she expressed appreciation for the Applicant's mentorship, do not readily align with the assertion that he threatened to report her to the Director of Nursing or to her University, or to withdraw support for her course. In these circumstances, although it is finely balanced, I do not consider the evidence sufficient to substantiate the allegation. Accordingly, Allegation 1.16 is not substantiated

1.17 On 13 October 2023, you allegedly swore at SL following your alleged displeasure to an email SL had sent to yourself, Ms White and Mr Garry Soo, Director of Pharmacy CRGH. You allegedly stated to SL words to the effect 'you need to think before what you do; you sent the fucking email.'

1. The Respondent relied on SL's evidence that Dr Suryawanshi said to her "you need to think before you send the fucking e-mail".[65] The Respondent submitted that this was supported by the evidence of MT and AZ, who stated that they recalled SL reporting this interaction to them.[66] I observe that the allegation as framed contains a spelling error, but the substance of the alleged statement is clear.
2. The Applicant submitted that the allegation was not put to him in cross‑examination. The Applicant accepted the substance of the allegation but stated that he used the word "freaking" rather than "fucking", submitting that his version was more consistent with his general manner in the workplace.[67] The Applicant said he was frustrated because, in his view, SL had made a serious and potentially dangerous recommendation regarding the withdrawal of mixed and concentrated insulin from Penfills. He said that SL acknowledged her error, asked to meet with him on 13 October 2023 to respond to the Pharmacy enquiry, and that he had emailed her and the DNEs the previous day setting out the correct advice. He denied raising his voice, accepted that he should not have used the word "freaking", and said he assisted SL to send an email correcting her advice. He relied on an email SL sent him later that day thanking him and expressing appreciation.
3. SL denies that she asked the Applicant to meet with her on 13 October 2023 or that she sought his assistance in responding to the email from the Pharmacy. Her evidence was that she did not initiate the interaction and did not seek guidance or correction from the Applicant in relation to the email.
4. Having regard to my earlier credit observations, I am satisfied that the Applicant made the statement alleged. SL gave direct evidence of the exchange and denied that she had sought a meeting or requested the Applicant's assistance. She said he appeared visibly angry and used the expression "fucking email" or words to similar effect. MT and AZ provided limited corroboration, in that each recalled SL reporting the incident to them at the time, although their accounts do not independently confirm the precise wording used, so I place modest weight on them. The Applicant accepted the substance of the allegation, disputing only the exact wording used, which does not materially alter the nature of the conduct. Even if SL made a potentially serious mistake and even accepting that the Applicant held a genuine concern about patient safety, that context does not justify addressing her in the manner he did. His belief that he was responding to a serious clinical issue provides some context, but it does not excuse the use of intemperate language towards SL, whether the expression used was "freaking" or "fucking".
5. I have also taken into account the 'thank you' email SL sent the Applicant later that day. Its polite tone does not displace the weight of her evidence and is consistent with her account that she did not wish to upset him after the incident. Having regard to these matters, the circumstances in which the exchange occurred, and the evident power imbalance, I am satisfied that the conduct was reasonably capable of causing apprehension or humiliation. When viewed together with the other substantiated interactions during the period, the exchange forms part of a pattern of inappropriate conduct amounting to bullying and or harassment. Allegation 1.17 is therefore substantiated.

1.19 On 19 October 2023, you called the DNEs and queried whether any emails were being leaked, if you were being recorded and why they had invited Ms White to the upcoming meeting, when it had been yourself who suggested Ms White attend the meeting in an email dated 18 October 2023.

1. The Respondent relied upon the evidence of MT[68] and AZ[69] who each stated that Dr Suryawanshi repeatedly asked whether emails had been leaked and whether the call was being recorded. Both MT and AZ also gave evidence that the Applicant questioned why Ms White had been invited to the meeting. The Respondent further relied on MT's evidence that the suggestion for Ms White to attend the meeting came from an email the Applicant sent to the DNEs the previous day.[70]
2. The Applicant submitted that he merely sought to clarify whether Ms White had been invited to the meeting and denied that his inquiries reflected suspicion or concern about email leaks or recordings.[71] Additionally, the Applicant contended that the evidence of SL, particularly the assertion that the Applicant appeared "visibly suspicious" and was "not merely clarifying logistics", should be rejected on the basis that SL's account was unreliable.[72]
3. The Applicant further submitted that the evidence of SL, MT and AZ should be approached with caution, asserting that there had been discussion or collusion among the DNEs which undermined the independence of their accounts. The Applicant relied on AZ's admission in cross‑examination that there had been some discussion between the DNEs about the incident, in support of that contention.
4. I accept the evidence of MT and AZ that during the call the Applicant asked whether the conversation was being recorded, queried whether his emails were being leaked, and questioned why Ms White was attending the forthcoming meeting despite having queried her possible inclusion the previous day. Their evidence was consistent and mutually corroborative. The Applicant's explanation that he was simply clarifying arrangements is not consistent with the substance of the interaction as described by MT, AZ and SL.
5. As referred to above, the suggestion by the Applicant that the DNEs colluded in their accounts is not substantiated. Although they discussed the events after the telephone call, there is no evidence of collusion or indication that their recollections were coordinated in a way that undermines their reliability. Their descriptions of the relevant aspects of this allegation align in the essential respects but are not identical and are accepted.
6. The conduct in this allegation sits within a broader pattern of interactions in which the Applicant has, on prior occasions, stepped beyond his role by questioning or directing the DNEs in ways that encroached on their autonomy and professionalism. This context assists in understanding the interaction but does not elevate the conduct to misconduct.
7. For the reasons set out above, I am satisfied that the conduct described in Allegation 1.19 occurred. The evidence supports a finding that the Applicant questioned the DNEs in the manner alleged and queried Ms White's attendance despite having proposed it himself the previous day. The allegation is therefore substantiated in its factual elements.
8. Considered on its own, the conduct does not constitute bullying or harassment. While the exchange was inappropriate and unnecessary, it does not, in isolation, rise to the level of conduct ordinarily required to satisfy that standard.
9. When placed within the broader pattern outlined in this decision, the conduct contributes to a series of interactions which, taken together, provide context for understanding that pattern. It is in this cumulative context that the significance of the conduct is best understood.
10. Although the conduct exhibits poor judgment and a manner of communication and behaviour that was not appropriate for the workplace, it falls just short of demonstrating the degree of impropriety necessary to support a finding of bullying or harassment and thus of misconduct. Accordingly, Allegation 1.19 is substantiated in part.

1.20 On 20 October 2023, you put SL down in front of AZ, MT and Ms Juliana Wu (former) DNE, EMO, CRGH and stated to the DNEs words to the effect 'do not follow SL, she is not a leader.'

1.21 During the same meeting on 20 October 2023, you stated to SL 'you cannot communicate' and 'I do not want to make anyone cry today' whilst allegedly pushing a box of tissues towards her at the commencement of the meeting.

1.22 During the same meeting on 20 October 2023, you stated to the DNEs 'Who told me to choose SL over Grace' for the TNP role.

1. The Respondent relied on the evidence of MT,[73] AZ[74] and Ms Wu[75] each of whom stated that Dr Suryawanshi said words to the effect "SL is not a leader; do not follow her" during a meeting.
2. Ms Wu provided similar evidence, confirming it was the Applicant who said SL "was not a leader", but she described the tone as dismissive instead of sarcastic.[76]
3. The Applicant denied making the alleged statement. He submitted that, in cross‑examination, AZ accepted that during the same meeting he expressed support for SL, stating that he and SL were working together on communication strategies and had made progress. He argued that this acknowledgement made it inherently unlikely that he would, in the same meeting, disparage SL's leadership. He further contended that the reliability of the DNEs' accounts was undermined because the DNEs had discussed the incidents among themselves before raising the allegations.
4. The Applicant also submitted that the meeting had been convened to address tensions within the team, and that his intention was to promote constructive discussion and support SL rather than undermine her. He argued that the overall tenor of the meeting, including his comments about improving communication, was inconsistent with the allegation that he disparaged SL in the manner alleged. This was denied by the DNEs.
5. I am satisfied, on the consistent evidence of MT, AZ and Ms Wu, that the Applicant made the statement to the effect that SL was "not a leader" and that the DNEs should not follow her. Although the comment was not directed to SL herself, it was made about her in the presence of a group of junior colleagues and was reasonably likely to be conveyed back to her. I have considered the Applicant's submission that AZ accepted he also expressed support for SL during the meeting; however, that acknowledgement does not outweigh the consistent and mutually corroborative evidence that the disparaging statement was made. The allegation is therefore substantiated as to fact.
6. The remark was unprofessional and undermining of SL in her role as Senior Nurse. It also had the potential to cause apprehension among the DNEs who heard it, given that it involved a senior clinician openly disparaging a senior member of their cohort. Although the remark would not, standing alone, constitute bullying or harassment, it cannot be viewed in isolation.
7. When assessed together with the other substantiated conduct directed toward SL during the relevant period, the remark forms part of a pattern of repeated, unreasonable conduct that constitutes workplace bullying. In light of the Applicant's senior role, his position of influence, and the context in which the remark was made, the conduct represented a departure from the standard expected of a senior clinician. That bullying therefore constitutes misconduct. Allegation 1.19 is therefore substantiated.

1. The Respondent relied on the evidence of MT,[77] SL[78] and AZ[79] that, during the meeting on 20 October 2023, Dr Suryawanshi said to SL in a sarcastic tone, "I do not want to make anyone cry today", while pushing a box of tissues towards her.
2. The Respondent relied on SL's evidence in cross-examination that Dr Suryawanshi was not empathetic or supportive when he pushed the tissue box towards her.[80]
3. The Applicant denied making the statements alleged. He submitted, that in cross-examination, AZ gave evidence that he had expressed support for SL during the meeting and that he had said, "SL and I are working on communication strategies, and we agree that significant progress has been made in this area." I do not accept that AZ agreed he was being supportive. She did acknowledge that he made the above statement, and this appeared to be a reasonable and balanced concession. Her evidence on this point was not shaken in cross-examination.
4. He also relied on the evidence of SL and AZ that SL had said, "Do you want me to cry" and stated that this was the reason he passed the box of tissues to her. He said his intention was not to distress her and that he did not want to see anyone cry. The Applicant further claimed that tension existed between the DNEs, particularly between AZ and SL, and that this tension explained the atmosphere of the meeting. AZ denied this, and there is no evidence from SL, MT or Ms Wu supporting that a contention. Both AZ and MT denied complaining about SL or saying that they needed a new leader. The Applicant also asserted that he met with SL earlier on 20 October 2023 for a mentoring discussion in which she told him that AZ had challenged her during the week and that she was distressed. SL denied that any such meeting occurred and relied on an email confirming that she was attending an online course at the relevant time.
5. I am not persuaded by the Applicant's explanation. The witnesses gave a consistent account of the tone and effect of the comments and the gesture. All of the DNEs were clear that SL was not crying, nor distressed, and that there was no indication that tissues were required for the purpose suggested by the Applicant. In those circumstances, I accept that the conduct occurred in the manner described by the Respondent's witnesses. SL and AZ also gave evidence that the Applicant organised the meeting, not SL, as alleged by the Applicant.
6. On the evidence before me, the behaviour was unnecessary and undermining and fell short of the standard of professionalism expected of a senior medical practitioner in a meeting. When assessed in the context of the other similar substantiated allegations, this incident forms part of a broader pattern of conduct involving belittling and distressing DNEs, which constitutes bullying and harassment. Even when considered in isolation, the conduct constitutes misconduct and was capable of eroding professional trust and confidence. The allegation is therefore substantiated.

1. The Respondent relied upon the evidence of MT[81] and AZ[82] that during the same meeting, the Applicant told SL, "You cannot communicate". After SL and Ms Wu left the room, he then said to AZ and MT, in a sarcastic tone, "Who told me to choose SL over Grace". AZ also recalled that the Applicant rolled his eyes when making that comment.
2. The Applicant denied making the statement and said that the purpose of the meeting was to build a harmonious work culture.
3. I prefer the evidence of MT and AZ. Their accounts were consistent with each other and with the broader pattern of conduct during the meeting already established. There is no persuasive evidence to support the Applicant's contention that the meeting was directed toward promoting harmony, and the contemporaneous statements attributed to him are inconsistent with that claim.
4. On the evidence before me, the comments directed at SL during the meeting, together with the subsequent remark made to AZ and MT, were dismissive and disparaging. When viewed in the context of the earlier conduct in the same meeting and the series of similar substantiated allegations, this incident contributes to a broader pattern of behaviour that belittled and undermined DNEs. Assessed cumulatively, the conduct constitutes bullying and harassment. Even when considered alone, it constitutes misconduct. The allegation is therefore substantiated.

1.25 On 27 October 2023, during a meeting with SL, you told her words to the effect 'did you deliver your brain together with your baby?' and further commented that SL needed to take English classes and is underperforming.

1. The Respondent relied on the evidence of SL that Dr Suryawanshi suggested she should take English classes and criticised her performance. [83] SL also gave evidence that the Applicant asked her, "Did you deliver your brain together with your baby?"[84]
2. The Respondent also relied on SL's denial that she had ever referred to herself as having "baby brain". SL's consistent evidence was that after returning from maternity leave and particularly following her appointment to the TNP role in February 2023, the Applicant's criticisms of her English, communication and written documentation increased.
3. The Respondent additionally relied on the evidence of AZ, who said that on 27 October 2023 she spoke with SL shortly after a meeting with the Applicant. SL was in tears and told AZ that the Applicant had said words to the effect of, "Did you deliver your brain together with your baby" and had again criticised her English and her performance. AZ's evidence provides partial corroboration of SL's account.
4. The Applicant denied making the remarks alleged. He submitted that he did not speak in a derogatory manner to colleagues and that comments of this nature were inconsistent with his character. He said SL had made comments about having "baby brain" and that her performance declined after having a baby.[85] He submitted that SL was not a credible witness and that his version of events should be accepted. He also submitted that SL approached him on 23 October 2023 to discuss communication strategies and relied on an email sent by SL the day after their meeting on 27 October 2023 thanking him for his support.
5. I do not accept the Applicant's explanation. SL's evidence is consistent with the DNEs description of ongoing criticism of SL's English skills, and AZ's account corroborates both SL's immediate distress and the substance of what she reported. There is no reliable evidence that SL introduced or used the phrase "baby brain", and I find that the Applicant made the remarks attributed to him. The Applicant also claimed that SL asked whether he believed in the concept of "baby brain". This assertion is uncorroborated and is denied by SL, and it does not displace the clearer evidence of SL and AZ.
6. The comments directed to SL were demeaning and inappropriate. They improperly linked her pregnancy and maternity leave to her competence and criticised her English skills in belittling terms. Although the incident has been assessed on its own evidence, it occurred within the same general period as other similar interactions and is consistent with the broader pattern already identified. Assessed cumulatively, the conduct constitutes bullying and harassment. Even when considered alone, the incident constitutes misconduct and falls below the standard expected of a senior medical practitioner. Accordingly, I find the allegation substantiated.

1.26 On 27 October 2023, you told MT you were dissatisfied with SL's response in the QA departmental meeting that morning asking her 'if she can speak English? Or am I speaking a different language?'.

1. The Respondent relied on the evidence of MT that after a department meeting, Dr Suryawanshi asked her if SL could speak English or if she was speaking a different language.[86] MT said this comment was made in reference to SL's presentation earlier that day.
2. The Applicant denied making this remark. He submitted that he had supported SL with her language development and would not make such comments to a junior colleague.
3. The Applicant also relied on SL's acknowledgement in cross-examination that she wished to improve her English skills. That acknowledgment does not alter my finding. SL's desire to strengthen her communication skills does not justify criticism being delivered in a demeaning or inappropriate manner.
4. I accept MT's evidence. Her account was direct and consistent, and it accords with the comments I have already found the Applicant made to SL earlier on the same day concerning her English skills and performance. The remarks occurred in close succession, related to the same subject matter, and reflected the same pattern of belittling conduct on 27 October 2023. I find that the comment was made and the allegation is substantiated.
5. Taken together with the comments made to SL earlier on 27 October 2023, this further remark reinforces the pattern of behaviour already identified. It was undermining and inappropriate, constitutes misconduct, and contributes to the cumulative finding of bullying.

1.27 On 22 November 2023, during a meeting with the DNEs and Ms White you made comments towards the DNEs 'DNEs are now slacking off now that they have permanent positions'.

1. The Respondent relied on the evidence of MT and Ms White that, at the meeting on 22 November 2023, the Applicant stated that once the DNEs secured permanent positions, that they would slack off and that they were now underperforming.[87] The Respondent also relied upon the evidence of Ms Wu that she recalled similar remarks made by the Applicant.[88]
2. The Respondent further relied on the evidence of Ms White, including a contemporaneous file note which she stated she made immediately after the meeting. Ms White gave evidence that the Applicant stated words to the effect that the DNEs were all now permanent or regular staff members, and that this was leading to suboptimal care because they were not going beyond their day‑to‑day tasks.
3. The Applicant submitted that he had said words to the effect that clinicians often change their approach after securing permanent positions, but that he had prefaced the comment by indicating it was intended as a joke and was light‑hearted. He gave evidence that he regretted making the comment and did not intend to cause distress. In closing submissions on 8 October 2024, Mr Mahendra contended that I should place particular weight on the evidence of Ms White and her contemporaneous file note.[89]
4. The Applicant further claimed that the meeting was convened because MT and AZ had complained that Ms Wu was not seeing enough patients, which MT and AZ denied. MT recalled the Applicant saying early in the meeting that the DNEs were now slacking off because they had permanent positions, and that Ms White cautioned him about how he spoke to the DNEs. Her account is consistent with Ms White's evidence. All of the DNEs and Ms White rejected the suggestion that the remark was intended or understood as a joke.
5. Nothing in Ms White's cross‑examination undermined her written evidence or her file note. She did not accept that the Applicant's remark was a joke, maintained that the comments were directed at SL, and her account remained consistent with that of the DNEs.
6. I accept the evidence of MT, Ms Wu and Ms White. Their accounts are mutually consistent and are supported by the contemporaneous file note prepared by Ms White. The Applicant's characterisation of the remark as a joke, even if accepted, does not alter either the substance of what was said or the inappropriateness of making such a remark to or about the DNEs. The comment was dismissive of the DNEs' professionalism and was unnecessary, particularly when viewed in the context of other disparaging remarks made by the Applicant about the DNEs. I find that the remark was made and that it constituted misconduct. When considered together with the pattern of undermining conduct identified in the surrounding allegations, it contributes to the cumulative finding of bullying. Allegation 1.27 is substantiated.

1.28 On 22 November 2023 at 9:15pm, you sent an unusual threatening cryptic email to AZ stating, 'Mo ONE nit suite shiru hitsuo wa arimasen', 'Figure out the above language, if you can't - consider it as an abuse from a savage colleague!

1. The Respondent relied on an email sent by the Applicant to AZ at 9.15 pm on 22 November 2023.[90] AZ gave evidence that she received the email at that time. The email contained an untranslated Japanese phrase, followed by the words, "Figure out the above language, if you cannot, consider it as an abuse from a savage colleague", together with a farewell‑type expression. AZ gave evidence that she used an online translation tool, which produced meanings including "nice to have known you" and "no more secrets with DNEs". The email also included the words, "Nice to have known you, will always have respect for who you truly are ... probably something you don't know about yourself".[91]
2. AZ's evidence was that the email caused her considerable distress, that she felt anxious and worried for her safety, and that she was unable to sleep that night. She gave evidence, in both her statement and in cross‑examination, that by this stage the working relationship had deteriorated and that she experienced a degree of fear in her interactions with the Applicant. It is not necessary for me to make a specific finding as to the level of fear she held, and I do not rely on that evidence for the purposes of this allegation; the objective content and context of the email are sufficient.
3. Ms Wu gave evidence that AZ arrived at work the following morning appearing stressed and said that the email appeared to convey a farewell message. Ms Wu said that this caused her concern about whether there might be a hidden meaning behind the message and led her to question whether the DNEs should be concerned about their safety. She recalled thinking, "what is he going to do?"[92] and said that the incident left her uneasy about continuing to work in the Diabetes Unit.
4. The Applicant denied that the email was cryptic or threatening. During the proceedings Mr Mahendra accepted that the email was cryptic but submitted that it had been taken out of context. The Applicant said he and AZ had a good working relationship, that the word "savage" had previously been used jokingly between them, and that AZ was of half‑Japanese background and they had occasionally used Japanese words in conversation. The Applicant further contended that the Japanese phrase in the email was intended to convey that he no longer needed to be informed of the DNEs' personal or non‑clinical matters. The email was sent in response to an email from AZ advising that she would in late the next morning due to a medical appointment. He submitted that the email was intended as humour and had been taken out of context. The Applicant's evidence was that he and AZ had a conversation the following day in which she expressed concern that he might have felt attacked or that he might harm himself.
5. AZ denied speaking Japanese or using Japanese expressions with the Applicant and denied having any conversation in which she suggested that he might have felt attacked or might harm himself. She said that when they spoke the next day, he told her the email had been meant in humour but did not explain it. She said the Applicant later sent her a text message saying, "Hope you are okay now... it was sent in humour", and that she replied neutrally because she was afraid of how he might react. AZ denied the Applicant's account of events and did report the matter to Ms White at the time.
6. The Applicant submitted that, if AZ had genuinely been distressed, she would have raised the matter formally in November 2023. AZ's evidence was that she showed the email to Ms White at the time but at that stage chose not to escalate the matter, as she was concerned about the Applicant's reaction. Her evidence as to her reaction and her immediate response on receiving the email was not shaken in cross‑examination.
7. Having considered all the evidence, I am satisfied that the email was inappropriate in both tone and content. It was sent late at night, on the evening of a tense meeting at which I have found the Applicant made disparaging remarks about the DNEs, and at a time when the working relationship had deteriorated. The email included untranslated text and employed language reasonably capable of causing unease. Although AZ accepted that the reference to "savage" had previously been used jokingly between them, that was the extent of her acceptance, and it does not support the broader explanation advanced by the Applicant. The Applicant's contention that the email was humorous or formed part of an established pattern of joking is not supported by the evidence.
8. The reactions of AZ and Ms Wu, viewed objectively and in light of the events of the meeting that day and the overall decline in the working relationship, were understandable. I find that the email was sent in an unprofessional and inappropriate manner and that it constitutes misconduct. When considered together with similar conduct identified in the surrounding allegations, it contributes to a cumulative pattern of behaviour amounting to bullying. Accordingly, I find that the allegation is substantiated.

1.29 On 28 November 2023, you criticised SL in an email regarding notifying changes to the RAC DNE coverage to Dr Kirtan Ganda, Consultant, EMD, CRGH.

1. The Respondent relied on the email sent by the Applicant to SL on 28 November 2023, submitting that the tone of the email was unnecessarily critical and directed at SL personally.[93]
2. The Applicant submitted that this allegation was not put to him in cross‑examination and that the email was an unexceptional exchange. He said his message asking that future consultant notifications be left to him simply reflected his preferred process as Director of Diabetes. He denied criticising SL, saying she had emailed prematurely without being aware of his discussions with the team and had earlier conveyed information about DNE coverage that was not accurate. He said that after receiving SL's email, MT contacted him about the confusion it had caused.[94] SL denied this part of the account and said MT was on leave at the time.
3. Having considered the email itself, I am not satisfied that this exchange constitutes bullying or harassment or amounts to misconduct. The message was brief, expressed a preference for future notifications to be made by the Applicant, and did not contain language that was belittling, or unreasonable. On its face, it was a direction about the appropriate process for notifying consultants, which arguably falls within the Applicant's responsibilities as Director of Diabetes. Even when viewed in the context of the other conduct I have found during the same general period, the content of this email does not constitute conduct that could reasonably be regarded as inappropriate or bullying. Allegation 1.29 is not established.

1.30 On 5 December 2023, you raised your voice at SL during a meeting and spoke in a rude manner regarding SL using the NDSS online portal for a patient.

1. The Respondent relied on the evidence of SL that, during a meeting on 5 December 2023, the Applicant raised his voice and spoke to her in a rude manner when discussing her use of the NDSS online portal. SL said that the Applicant appeared agitated and compared himself to other specialists, stating that his NDSS applications were approved promptly while applications submitted by others took longer.[95]
2. The Applicant denied the allegation.[96] He submitted that SL was not a reliable witness and stated that he does not raise his voice, even when colleagues make mistakes. He said that, after reviewing his work diary, the meeting on 5 December 2023 was held to provide guidance to SL on completing a NDSS application, that he provided examples of successful applications, and that SL nevertheless later made an error in relation to a patient, requiring him to provide the instructions again. He denied responding in a raised voice or in a rude manner. He further submitted that it was highly improbable that he would have acted in a hostile way, as he believed that he and SL had a good working relationship.
3. MT's evidence, contained in a file note, was that SL returned to the Diabetes Centre after the meeting visibly upset and crying. MT said that SL told her that the Applicant had raised his voice and acted inappropriately towards her in relation to an NDSS matter.
4. Although MT's file note supports that SL was distressed following the meeting, this allegation was not explored in any detail in the proceedings. That evidence corroborates SL's reaction to the meeting but does not corroborate the conduct alleged. The allegation therefore depends on SL's account of what occurred during the meeting, and there is no supporting evidence from any witness or contemporaneous record concerning the tone or manner in which the Applicant spoke.
5. As set out earlier in this decision, I do not accept the Applicant's assertions that SL was an unreliable witness or that the working relationship was positive at this time. However, unlike other allegations where evidence of distress or reaction supported findings in relation to the conduct alleged, the evidence relied on here does not extend to what was said or how it was said. In these circumstances, I am not satisfied to the requisite standard that the Applicant raised his voice or spoke to SL in a rude manner on 5 December 2023. Allegation 1.30 is not established.

1.32 On 2 April 2024, during the Endocrinology Department General Meeting when SL was providing updates in relation to pharmaceutical companies conducting in-services, you allegedly commented that 'goodies were received in the past by the DNEs'.

1. The Respondent relied on the evidence of AZ that Dr Suryawanshi had stated in a department meeting in the past "goodies" were received by the DNEs.[97] The Respondent also relied on SL's evidence that the Applicant said diabetes educators used to take "goodies" from pharmaceutical companies, and that the comment was made in a joking manner".[98]
2. The Respondent further relied on the evidence of Mr Sommer, who said the Applicant stated that in the past DNEs were receiving "goodies" from pharmaceutical representatives.[99]
3. AZ gave evidence that, at a meeting on 2 April 2024, when SL spoke about arranging in‑services with device suppliers, the Applicant said that DNEs should not arrange their own in‑services, should not speak directly with medical representatives, and should instead go through the administrative officer. AZ said that, when Dr Kormas asked why that was the case, the Applicant responded that "goodies" had been received in the past.
4. AZ said that SL appeared visibly upset. She also gave evidence that suppliers sometimes provided light lunches or consumables for patient use, but did not provide gifts, money or in‑kind benefits. AZ regarded the comment as inappropriate and said that she and SL later raised their concerns with Ms White and Dr Kormas.
5. Ms Wu gave evidence that, at a general department meeting, the Applicant said that the DNEs had received "freebies" from pharmaceutical representatives. While Ms Wu accepted in cross‑examination that the Applicant appeared to be referring to issues of transparency in dealings with pharmaceutical companies, she said that the comment was not accurate and that it was made in the context of SL organising in‑services to support training on medical devices.
6. The Applicant admitted making the statement but said it was directed at Dr Kormas and referred only to past practices, not to current staff. He relied on Ms Wu's evidence in cross‑examination, which he said indicated that his comment was directed to ensuring transparency in dealings with pharmaceutical representatives, and on Dr Kormas' evidence that he could have made the remark in the manner described. He submitted that, in that context, the comment should not amount to misconduct.
7. SL rejected the Applicant's account that the comment was directed to Dr Kormas, saying the remark was directed to her immediately after she finished speaking. She denied saying she had "extra time" to liaise with pharmaceutical representatives, explaining that she instead referred to the DNE roster being available to assist scheduling. She also denied ever telling the Applicant that DNEs had received gifts or benefits from pharmaceutical companies or that she had expressed interest in accumulating funds from them.[100]
8. The Respondent's witnesses, including AZ and SL, gave consistent evidence that the remark was made in response to SL's update, implied that DNEs had accepted improper benefits, and caused SL visible distress. I accept SL's evidence that the comment was directed to her. Although Ms Wu accepted in cross‑examination that the Applicant appeared to be referring to issues of transparency with pharmaceutical companies, that acceptance does not alter the character of the remark or the context in which it was made.
9. In the context of the deteriorating working relationship, and the other inappropriate remarks I have found were made to DNEs, the comment was unnecessary, capable of causing embarrassment, and inconsistent with the standards expected of a senior clinician. I find that the conduct constitutes misconduct and contributes to the broader pattern of undermining behaviour identified in the surrounding allegations. The allegation is substantiated.

1.33 With reference to 1.32, on 2 April 2024 at 3:30pm, you sent an email to the whole department, Ms White and Ms Debra Donnelly, (former) Clinical Manager, SLHD stating DNEs were not allowed to have education sessions with external representatives which insinuated that the DNEs were not following applicable guidelines.

1. The Respondent relied on both the evidence of the email itself,[101] and on AZ's evidence. AZ gave evidence that shortly after the meeting on 2 April 2024 the Applicant sent an email referring to the need for DNEs to follow SLHD guidelines when engaging with external representatives. She said the timing followed immediately after the Applicant criticised the DNEs for speaking directly with such representatives. AZ said that the reference to guidelines and the circulation of the email to senior managers conveyed that the DNEs had not followed the correct process and reinforced the distress SL had experienced after the meeting.[102] The Respondent further submitted that the email reflected the same critical tone implied in the Applicant's earlier comment recorded in Allegation 1.32.
2. The Applicant denied the allegation.[103] He said the email did not state that DNEs were prohibited from having education sessions with external representatives and did not insinuate that they had failed to follow applicable guidelines. He said he wished to maintain an existing arrangement that he considered effective and aimed to avoid conflicts of interest. He submitted that the email, read objectively, was neutral in tone and simply outlined the appropriate process for liaising with pharmaceutical companies in accordance with hospital policy. He said that any criticism perceived by others was an inference not supported by the wording of the email and that the message should not be interpreted solely in the light of the earlier meeting.
3. The email does not in express terms prohibit DNEs from arranging in‑services or state that they had failed to follow guidelines. However, it was sent very shortly after the Applicant criticised the DNEs for dealing directly with external representatives. In that context, the reminder that SLHD guidelines should be followed with any pharmaceutical involvement, the direction that liaison occurs through Ms Wong and Ms Barsoom, and the circulation to senior managers was reasonably capable of conveying that the DNEs had not adhered to the expected process. AZ's evidence supports that this was how the email was understood. The Applicant's submission that the email was neutral and merely restated existing policy does not fully account for the immediacy with which it followed the earlier criticism or the effect it had on SL and AZ.
4. I am satisfied that the email implied criticism of the DNEs by suggesting that they had not followed the correct processes when engaging with external representatives. Although framed in procedural terms, it was unnecessary and capable of reinforcing the criticism expressed earlier in the meeting. When considered together with the conduct established in Allegation 1.32 and the other inappropriate remarks I have found during this period, the email forms part of the broader pattern of undermining behaviour directed at the DNEs and constitutes misconduct. Allegation 1.33 is substantiated.

1.34 You insisted that MT not provide a sensor for a patient despite instruction from Dr Kormas, Head of Endocrinology to provide one to the patient for discharge.

1. The Respondent relied on the evidence of MT that on 26 April 2023 she notified the Applicant that Dr Kormas had requested a Dexcom sensor for a patient in accordance with OMS approval. MT said the Applicant questioned why he had not been told before the sensor was issued and said it was "illegal" to issue it without his approval as Director of Diabetes. The Respondent pointed to an email the Applicant sent to Dr Kormas and to his direction that future sensor requests be discussed with him and submitted that this was inappropriate because the patient was not under the Applicant's care and the decision to issue the sensor was not his responsibility. The Respondent also referred to other communications said to reflect tension between the Applicant and senior clinicians.
2. The Applicant denied the allegation. He submitted that the Investigator did not substantiate the matter as a breach of policy and that it was not relied upon in the decision to terminate his employment. He further relied on Ms Willcox's evidence in cross‑examination that only findings of misconduct which were substantiated as breaches of policy formed part of the grounds for termination and submitted that this allegation therefore did not form part of the decision to terminate his employment.
3. The Respondent nonetheless continued to press this allegation, although no clear explanation was provided as to why it was relied upon or on what basis it was said to form part of the disciplinary case. The evidence establishes that the matter was not substantiated as a breach of policy and was not relied upon in the decision to terminate the Applicant's employment. Although I am not bound by an investigator's conclusions and have departed from them in other instances where the evidence warranted doing so, there is no evidentiary or forensic basis for departing from the Investigator's conclusion in relation to this allegation. It is therefore unnecessary to consider it further and the allegation is not substantiated.

2. That you have breached confidentiality:

2.1 On 10 April 2019, you sent SL screenshots of notes outlining concerns related to Ms Sylvia Mallo, (former) Nurse Practitioner, EMO, CRGH in a text message and allegedly captioned the screenshots 'Enjoy reading'.

1. Ms Mallo was a former Nurse Practitioner (NP) at Concord Hospital and, according to the evidence, there had been workplace difficulties involving her, the Applicant and SL. She left Concord Hospital well before the DNE allegations arose in 2024.
2. The Respondent relied upon the documentary evidence, comprising the text message and the screenshots, together with SL's evidence that the Applicant sent her screenshots of his concerns about Ms Mallo accompanied by the message "Enjoy reading".[104] The Respondent submitted that sending confidential material concerning a colleague in this manner was inappropriate and that the Applicant had shared concerns about staff conduct informally and for no operational purpose, which it said was inconsistent with the expectations of a senior clinician.
3. The Applicant accepted that he had sent the messages and screenshots.[105] He submitted, however, that the proper context was that SL had her own concerns regarding Ms Mallo,[106] and was distressed about her behaviour. He said SL asked him for an update on the issues that had been raised with Professor Seibel and that he sent a draft document to obtain her input because she had been directly affected. He said he did not regard the material as confidential, accepted that he should have exercised better judgement, and submitted that when considered in the full context of the time, the conduct did not warrant termination. He also said SL had previously complained about Ms Mallo, and they sometimes exchanged messages about her.
4. SL rejected the Applicant's claim that she had made complaints to him about Ms Mallo, saying she had not initiated any complaints about Ms Mallo and had only raised an issue relating to the signing‑off of her mentorship.
5. The evidence indicates that SL had issues with Ms Mallo at the time, but that does not explain or justify the manner in which the Applicant acted. The comment "Enjoy reading" and the decision to send screenshots of concerns about a colleague's performance by text message are inconsistent with the explanation he advanced. The Applicant was not SL's line manager and, given his seniority, could reasonably be expected to appreciate the need for propriety and confidentiality when dealing with matters relating to staff conduct. The informality of the communication demonstrates poor judgement. I also note that when contemporaneous communications such as texts and emails were put to him in these proceedings, the Applicant tended to describe them as innocuous rather than engage with their substance, which affects the weight I am able to give to his account.
6. I find that the Applicant's conduct in sending the screenshots and accompanying message was inappropriate. SL rejected the Applicant's claim that she had made complaints to him about Ms Mallo, saying she had not initiated complaints about Ms Mallo and had only raised a specific issue. That evidence does not alter my assessment that the Applicant's explanation for sending screenshots of concerns about a colleague by text message is inconsistent with the nature and informality of the communication. The decision to send the material in this way demonstrates poor judgement. Whilst I am mindful this allegation was not raised for a number of years, I accept it was because the Respondent was unaware of this behaviour. I am satisfied that this conduct amounts to misconduct and I find the allegation substantiated.

2.3 With reference to 1.1, on 20 July 2022, you sent AZ and MT a copy of an applicant's application for the TNP/NP role and asked them to write '5 points why this applicant is not suitable for this position' and '2 questions you would like to have in the interview'.

1. The Respondent relied upon the email as a contemporaneous document[107] together with the evidence of AZ and MT that they had received the email.
2. AZ gave evidence that the email included a copy of the application and CV of a candidate for the position and that the Applicant asked AZ and MT to "go through" the candidate and let him know. AZ also gave evidence that the Applicant sent her a screenshot of a text message with Ms White in which he said that he had asked MT and AZ to meet up with him and discuss the matter.[108]
3. MT gave evidence that she received the email and was already feeling that her position in the Diabetes Unit was under threat and that she would not obtain a permanent role. She said that the Applicant told her he would schedule a meeting with Ms White, AZ and MT, that they attended the meeting by telephone, and that at that meeting Ms White agreed that MT was too junior to apply for the position. MT also gave evidence that when she conveyed this to the Applicant, he said the result would be different if they met face to face.[109]
4. The Applicant admitted that he sent the email. He submitted that he had expressed regret for his conduct,[110] and that the incident should not be regarded as behaviour warranting termination. He relied on mitigating considerations, including that he had already formed the view that the candidate was unsuitable and the recruitment outcome had already been determined and that the matter was not raised at the time. He also submitted that the candidate whose materials he circulated did not meet the role requirements and had no public hospital experience. He further submitted that he had asked AZ and MT for their feedback in a for and against format.
5. I accept that the Applicant expressed regret. The Applicant did not dispute that he engaged in the conduct, and the contemporaneous record confirms it. The conduct occurred in circumstances where the Applicant, as a senior clinician, ought to have appreciated the inappropriateness of involving junior staff in assessing the suitability of another candidate for a senior position within the team, of circulating that candidate's materials to them, and of asking them to identify reasons why the candidate was not suitable. The allegation, which incorrectly refers to 1.1, in fact concerns the events described in Allegation 1.3(b), which I have found substantiated. Although it may be common for members of a team to offer views on a candidate under consideration, it is not appropriate to ask junior staff to articulate reasons why another candidate should not be appointed. I do not accept the Applicant's submission that he had already formed the view that the candidate was unsuitable, as that position is inconsistent with his request that AZ and MT "go through" the candidate and provide the responses sought. I also do not accept, on the face of the email, the Applicant's explanation that he was seeking feedback in a for and against format. The mitigating considerations raised do not alter the character of the conduct. As with Allegation 2.1, it represented a lapse in judgment inconsistent with the standards expected of him. I find that Allegation 2.3 is substantiated and amounts to misconduct.

2.4 With reference to 1.1, in July or August 2022, you showed AZ and MT the question you had asked the external candidate for the TNP/NP role and laughed saying '/ really made it difficult for her'.

1. The Respondent relied upon the evidence of both AZ[111] and MT.[112] AZ gave evidence that several weeks after an earlier conversation, she was present with MT when the Applicant opened a file containing the interview questions for the TNP recruitment. She said he drew their attention to a scenario question which he stated he had drafted, and that he laughed and said, "I made the question so hard she wasn't able to answer it". She further said that he then added, "she was not successful", which she described as accompanied by a sinister giggle.[113]
2. MT gave evidence that in about July or August 2022, the Applicant showed her and AZ the questions he had asked the external candidate. She said he then read out the questions and laughingly stated that the candidate had "bombed" the interview and that he had "really made it difficult for her".[114]
3. The Applicant submitted that this allegation had not been put to him in cross‑examination, and he denied having made any such statements. He further submitted that the evidence of AZ and MT should be approached with particular caution, given the dispute between the parties and the possibility that, going back to events in July 2022, they may have discussed matters with each other before giving their accounts.
4. Having considered the evidence, I am satisfied that this allegation is substantiated. Although the matter was not put to the Applicant in cross‑examination, a positive finding may nevertheless be made where there was a factual contest in the witness statements filed by the Applicant and the Respondent, and the evidence is otherwise clear, consistent and reliable. I have approached the evidence concerning this allegation with appropriate caution and scrutiny, noting the absence of any contemporaneous record of the exchange and the dispute as to what was said. AZ and MT each gave evidence that the Applicant showed them the interview questions for the external candidate and made the remarks attributed to him, and their accounts were mutually consistent, specific and described the same interaction. The contemporaneous email forming the subject of Allegation 2.3, in which the Applicant asked AZ and MT to provide "5 points why this applicant is not suitable for this position" and "2 questions you would like to have in the interview", arose from the same recruitment process and provides relevant contextual support for the reliability of their evidence. The Applicant submitted that, given the professional discourse in which he generally engaged, it was highly improbable that he would have made the asserted remark. On balance, I do not accept that submission in light of the findings I have made concerning his conduct during this period.

2.5. In around July or August 2023, you disclosed to AZ and MT details of your complaint against Dr Kormas and asked them to speak with his lawyer to support his complaint.

1. The Respondent relied on the evidence of both MT[115] and AZ.[116] Each gave evidence that the Applicant showed them the complaints he had made against Dr Kormas. Both said that the Applicant told them they should expect a call from his lawyer.[117] AZ also gave evidence that the Applicant asked them to support his complaint.
2. The Applicant submitted that this allegation was not put to him in cross-examination, and he denied the allegation. His evidence was that he informed AZ and MT that they might be contacted by the Investigator but that he did not ask them to support his complaint or provide assistance to his lawyer.[118]
3. I have approached the evidence concerning this allegation with appropriate caution, noting the absence of any contemporaneous record and the dispute as to what was said. The accounts of AZ and MT are consistent to the extent that each said the Applicant showed them his complaint and told them they might be contacted by his lawyer. Only AZ said that the Applicant asked them to support his complaint. In circumstances where that specific assertion was not put to the Applicant in cross‑examination, his denial of that aspect remained untested. Accordingly, I am satisfied that the allegation is substantiated to the extent that the Applicant showed AZ and MT his complaint about Dr Kormas and informed them that they might be contacted by his lawyer. I am not satisfied on the available evidence that he asked them to support his complaint, and the allegation is substantiated in part only.

3. That in your role you inappropriately contacted SL during her absence on parental leave:

3.1 During the periods of 15 July 2019 to 21 August 2020 and 31 May 2021 to 8 July 2022. It is alleged you contacted SL via text messages on:

• 26 July 2019 at 9:56pm requesting to talk

• 27 July 2019 at 2:34pm

• 8 May 2020 at 5:54pm requesting to talk

• 21 May 2020 at 9:22am requesting to talk

• 26 May 2020 at 4:25pm

• 22 December 2021 at 8:16pm inviting SL to meet.

1. The Respondent relied on SL's evidence that, during her periods of parental leave, the Applicant continued to contact her after she had asked not to be contacted.[119]
2. In respect of the incident on 8 May 2020, the Respondent relied on the text exchange,[120] and similarly relied on the text exchange for the incident on 22 December 2021.[121] In its written closing submissions, the Respondent referred to an Action List concerning the incidents of 26 and 27 July 2019. The reference appears to have been made in error, as that document does not refer to the conduct alleged.[122]
3. The Applicant submitted that this allegation was not substantiated as a breach of policy and, accordingly, should not be relied upon to justify his termination.[123]
4. During cross‑examination SL was questioned about these exchanges. The Applicant submitted that her explanation that she initiated contact because she was fearful was not credible.[124]
5. The Applicant further submitted that the allegation was relevant to the assessment of SL's evidence. He contended that the text exchanges showed that SL frequently initiated contact with him during her periods of parental leave, and that while he did contact her during those periods, the communication was not inappropriate and was, in his submission, mutually initiated.
6. The Respondent submitted that the Applicant repeatedly contacted SL during her periods of parental leave, including at times it characterised as inappropriate and after she had asked not to be contacted. It submitted that SL felt uncomfortable with the nature and frequency of the contact, referring to her description of feeling treated in a manner inconsistent with a professional relationship. The Respondent also referred to further interactions in December 2021, although those matters do not form part of Allegation 3.1.
7. The Applicant submitted in oral argument that Allegation 3.1 was central to the Respondent's case and that the evidence did not establish any inappropriate conduct. He contended that the contemporaneous text exchanges showed that SL frequently initiated contact, including around the time of the December 2021 interaction, referred to by the Respondent. He further submitted that the allegation had not been substantiated as a breach during the investigation and should not have been relied upon, and that the Respondent's reliance on it was inconsistent with the overall tenor of the investigation report.
8. On the evidence before me, I am not satisfied that this allegation is made out. The material does not establish that the Applicant's contact with SL during her periods of parental leave was inappropriate, nor does it identify with necessary precision what aspect of the contact is said to have been inappropriate. I do not doubt that SL was generally a witness of credit. She was visibly distressed when giving her evidence. However, given the passage of time and the later events between the parties, I consider it more probable that SL's recollection of earlier interactions may have been affected in a way that limits the weight that can be placed on her evidence for the purpose of this allegation. There is no contemporaneous evidence that SL asked the Applicant not to contact her while on maternity leave. In these circumstances, I am not persuaded that the allegation is substantiated.
9. Although this allegation was not substantiated by the Investigator and would not ordinarily warrant detailed consideration, the Respondent relied on it as a central element of its case, and it was the subject of extensive cross‑examination of SL. For that reason, I have addressed it notwithstanding the Investigator's finding, and I have approached this allegation consistently with the manner in which I have considered other allegations that were not substantiated during the investigation but were pressed by the Respondent at hearing.

3.2. In December 2021, you invited SL to meet you at the Breakfast Point Country Club and invited SL to your house to show her your audio system.

1. The Respondent relied on SL's evidence that, after inviting her to brunch in December 2021, the Applicant asked her to go home with him.[125]
2. The Applicant submitted that this allegation was not substantiated by the Investigator as a breach of policy and therefore should not be relied upon.[126]
3. The Applicant further submitted that the allegation was highly relevant to the assessment of SL's credibility. He contended that the text messages showed that SL proposed catching up for brunch, and that the Applicant had suggested inviting SL's husband.[127]
4. During cross‑examination, SL was questioned at length about the December 2021 text exchange. The Applicant submitted that her explanation that the social outings were "only my survival way to myself peace"[128] lacked coherence and that the Commission should treat this allegation with caution when considered alongside the contemporaneous communications.
5. I have approached this allegation in the same manner as other allegations that were not substantiated during the investigation but were pressed by the Respondent at the hearing. The allegation was clearly raised in the evidence, and both parties made submissions concerning its significance.
6. On the evidence before me, I am not satisfied that this allegation is made out. The text messages do not support the alleged conduct, and there is no contemporaneous record of any invitation to attend the Applicant's home. The context includes that the allegation was not substantiated during the investigation and was raised at the hearing based on SL's recollection of the December 2021 text exchange, which does not contain any reference to such an invitation. Having regard to the content of the text messages, the passage of time and that context, I am not persuaded that the conduct asserted occurred. Accordingly, I am not satisfied that the Respondent has established this allegation.

4. That you have engaged in conduct that did not promote a positive work environment:

4.1 that you have expressed negative opinions to the DNEs during clinics regarding former employees at Concord Hospital including:

(a) In 2021, you told AZ that Ms Mallo was a terrible clinician, Ms Grudzinskas was a bad diabetes nurse and Ms Taylor was a terrible manager

(b) You told AZ in 2021 that you wrote 'Kathy is a mad cow / is a drunk' on the whiteboard in the Diabetes Education Centre and laughed about it because you were never caught for doing it.

1. In the Investigator's Table of Findings,[129] Allegation 4.1 was not substantiated as a breach of policy. On subsequent review of the report, Mr Morris reached a different conclusion and determined that the allegation did amount to misconduct. The basis for that conclusion is not evident. His written rationale stated only that the conduct was "directly inconsistent" with the relevant policies,[130] without identifying any specific policy provisions or explaining the reasoning said to support the finding.
2. Allegation 4 is framed by reference to the Applicant engaging in conduct said not to promote a positive work environment. The Applicant submits that this formulation is aspirational rather than reflective of a defined behavioural obligation. There is force in that submission. Although framed in policy terms, a requirement to promote a positive work environment is not, of itself, capable of supporting a finding of misconduct unless anchored in specific and identifiable conduct obligations that have not been met, such as obligations to act professionally, to treat colleagues with respect. Accordingly, Allegations 4.1(a) and 4.1(b) are assessed by reference to the specific obligations that may have been breached.
3. SL gave direct evidence that in October 2017 she witnessed the Applicant write derogatory words about Ms Grudzinskas on the Diabetes Education Centre whiteboard and refer to her as a "mad cow",[131] "alcoholic candy",[132] and a "crazy cat".[133] SL said that when she raised the matter with the Applicant, he initially denied responsibility and blamed Ms Mallo.[134] When she reiterated that she had seen him write the words, he admitted the conduct and told her to remain silent. SL further said that when Ms Grudzinskas sought to escalate the matter, the Applicant instructed her not to disclose what she had witnessed.
4. AZ gave detailed evidence that in 2021, when she was new to the Department, the Applicant described several former nursing staff as bad or terrible, claimed to have had Ms Taylor and Ms Hogan removed from their positions, said while a patient was due to see him that he had used that patient in order to remove Ms Mallo from her role, and described Ms Grudzinskas as the worst nurse and lazy. AZ said that the Applicant laughingly told her that he had written on the whiteboard "Kathy is a mad cow" and "is a drunk" and said words to the effect that he had never been caught. She said he laughed when recounting these matters and that she formed the view that he did not hold nursing staff in high regard and projected influence over nursing staff. MT also gave evidence that the Applicant made similar remarks and laughingly recounted that he had upset Ms Grudzinskas by writing derogatory words about her on the Diabetes Education Centre whiteboard.[135]
5. The Applicant accepts that the underlying 2017 whiteboard incident occurred. He stated it was a "juvenile joke between Ms Mallo, SL and I."[136] He says that he and SL later apologised to Ms Grudzinskas and that they worked effectively thereafter. He denies recounting the incident to AZ in the manner described and denies laughing or boasting about having avoided any consequences for his conduct.
6. In relation to Allegation 4.1(a), I accept that the Applicant made some negative remarks about former colleagues in conversations with AZ in 2021. The more serious claims referred to above are not supported by any contemporaneous evidence and were not tested in cross‑examination to a level that would permit determinative findings. The remarks concerned former staff members with whom the DNEs had no ongoing working relationship and were made in informal discussions.
7. Having regard to the Investigator's assessment and the absence of any specific and identifiable conduct obligation engaged by the conduct as established, I am not satisfied that Allegation 4.1(a) is substantiated as a breach of policy.
8. The conduct established under Allegation 4.1(b) involves the use of derogatory words about a colleague and the later trivialisation of that conduct when recounting it to a junior colleague. I find that Allegation 4.1(b) is substantiated and constitutes misconduct. The conduct was inappropriate and unprofessional and was reasonably capable of undermining trust and confidence in the Applicant. I recognise that the underlying whiteboard incident occurred years earlier and that the recounting occurred in 2021. The temporal distance moderates, but does not negate, the seriousness of the conduct.
9. On the conduct I have found established, Allegation 4.1(a) does not amount to a breach of policy. Allegation 4.1(b), by contrast, does constitute misconduct for the reasons set out above. That conclusion rests on the established facts rather than the determination of Mr Morris. The introductory statement in Allegation 4, that the Applicant did not promote a positive work environment, is treated as descriptive rather than enforceable.

4.2 You had told the DNEs during clinics that you had got other employees at CRGH dismissed previously including:

(a) You told AZ that you 'got Sylvia kicked out' based on your patient, Patient 2's case, Ms Taylor kicked out and Ms Hogan removed.

(b) Between February and May 2022, you told MT that you were involved in the dismissal of several staff members at CRGH including Ms Hogan, Ms Taylor, Ms Mallo and Prof Chen for alleged misconduct, describing them as 'corrupt'.

(c) Between July 2022 and August 2023, you told SL that you got Ms Hogan, Ms Taylor, Ms Mallo and Ms Grudzinskas to leave CRGH because you have connections with senior executives.

1. The Respondent submits that Allegation 4.2(a) is supported by AZ's evidence that, in 2021, the Applicant told her that he had arranged for Ms Taylor and Ms Hogan to be removed and that he had used a patient encounter involving Patient 2 to "kick Sylvia out".[137] It submits that this is consistent with SL's evidence that, between July 2022 and August 2023, the Applicant told her that he had "got rid of"[138] colleagues including Ms Mallo, Ms Taylor and Ms Hogan because he had connections with senior executives, and with MT's evidence that the Applicant told her that former staff had been dismissed for corruption. The Respondent submits that these accounts reflect a pattern of the Applicant claiming influence over staffing outcomes.
2. The Applicant submits that, as with Allegation 4.1, the Investigator did not find Allegation 4.2 substantiated as a breach of policy and that Mr Morris' later conclusion should attract limited weight, particularly as no policy provisions were identified and no reasons were given. He denies making the statements alleged and says that none of the individuals concerned were his direct reports and that he had no control or influence over their employment. He submits that the allegations were tested only to a limited extent in cross‑examination and that the evidence of AZ, SL and MT reflects impressions rather than accurate recollections.
3. The Applicant gave evidence that he had good working relationships with the individuals named. He said that Ms Hogan left the Hospital after being promoted to a district role, Ms Taylor moved to a role in Human Resources, Ms Mallo and Ms Grudzinskas reported to Ms Donnelly and that he worked well with both, and that Professor Chen left to take up a role at St Vincent's Hospital.
4. AZ gave evidence that, in 2021, the Applicant told her that he had arranged for Ms Taylor and Ms Hogan to be removed and that he had used a patient encounter involving Patient 2 to "kick Sylvia out".[139] SL gave evidence that, between July 2022 and August 2023, the Applicant told her that he had "got rid of"[140] colleagues including Ms Mallo and Ms Taylor because he had connections with senior executives.
5. AZ and SL each gave evidence to the effect described above, namely that the Applicant claimed responsibility for the removal of former colleagues and asserted influence over staffing outcomes. MT also gave evidence to a similar effect. There is no documentary or contemporaneous corroboration of these alleged statements.
6. Allegations 4.2(a), (b) and (c) assert that the Applicant claimed responsibility for the removal or dismissal of former colleagues and, in the case of Allegation 4.2(b), that he described them as corrupt. These are serious assertions and require clear and cogent evidence. While I accept that AZ, SL and MT genuinely formed the impressions they described, their evidence does not establish that the Applicant made the specific statements particularised in the allegations. The evidence was tested only to a limited extent in cross‑examination, there is no contemporaneous corroboration, and there is no evidence that the Applicant exercised influence over staffing decisions relating to the individuals concerned.
7. For the reasons set out above, Allegations 4.2(a), (b) and (c) are not substantiated. The evidentiary basis is insufficient to support findings that the particular statements alleged were made.

5. That you have taken the following detrimental action against the DNEs for raising complaints against you in May 2024:

5.1 On 21 June 2024, you did not refer Patient 3 who had started on insulin therapy to the DNEs, resulting in the patient and his daughter asking administrative staff to speak to a nurse because no education had been provided about the medication.

1. The Respondent submits that, after becoming aware of the DNEs' complaints, the Applicant avoided referring patients to them. It relies on SL's email to Ms White of 21 June 2024 expressing concern that the Applicant reviewed Patient 3, commenced insulin and made no referral to the DNEs, which SL said departed from usual practice and prevented routine patient education.
2. The Applicant submits that the allegation was not put to him in cross‑examination, including any suggestion that he acted for a retaliatory purpose. He submits that he made a clinical decision after reviewing Patient 3 for several complex issues and that, following discussion, he and the patient agreed that referral to the general practitioner was appropriate. He denies that his decision was influenced by the DNEs' complaints. In oral closing submissions, Mr Mahendra emphasised that the Applicant would not compromise patient care for workplace reasons and relied on evidence from senior clinicians who regarded him as a responsible practitioner. He also said he was not informed of any query from the patient's daughter and that, in his experience, he would ordinarily be notified. In response to SL's evidence, the Applicant maintained that it was not SL's role to intervene in a plan he had agreed with the patient.
3. In reply, the Respondent submitted that the Applicant placed undue reliance on the absence of cross‑examination. It submitted that the principles associated with Browne v Dunn (1893) 6 R 67 are applied flexibly in the Commission, particularly where evidence is exchanged by way of written statements, and that the Applicant's position on the relevant issues was clear from his written evidence. The Respondent submitted that the Applicant's intention could properly be assessed from the surrounding circumstances, including the deterioration in his relationship with the DNEs, and that the absence of specific questioning did not preclude the Commission from drawing conclusions on the basis of the evidence as a whole. It further submitted that a number of propositions advanced by the Applicant in cross‑examination, including allegations that the DNEs had acted with malice or had conspired against him at the instigation of Dr Kormas or nursing management, were not supported by the evidence. The Respondent relied on SL's account only to the extent that it illustrated the practical consequences of the non‑referral, namely that the patient's daughter sought assistance and SL provided initial education despite not having received a referral.
4. SL gave evidence that she observed a change in the Applicant's referral practices in his Friday clinics. She said Registrars continued to refer patients to the diabetes educator, but the Applicant no longer did so when he saw patients himself. She referred to Patient 3 as an example, stating that the Applicant commenced insulin without making a referral and that the patient's daughter later sought assistance because she was unsure how to use the medication. SL said that newly commenced insulin patients would ordinarily be referred to a diabetes educator and that she provided initial education despite the absence of a referral. She said she was not attempting to intervene in treatment decisions but was required, as part of her role, to provide education within her scope.
5. MT and AZ also gave evidence they considered consistent with a change in the Applicant's referral practices, although only SL gave direct evidence about the referral of Patient 3.
6. The allegation asserts that the Applicant withheld a referral as detrimental action in response to the DNEs' complaints. That allegation necessarily involves examination of the Applicant's intention or purpose. None of the matters going to state of mind were put to him in cross‑examination. His explanation for the referral decision was therefore not challenged. While Browne v Dunn is applied flexibly in the Commission, matters going to motive or deliberate adverse action should be put to a witness, particularly where the allegation is serious. The Respondent was aware of the Applicant's position from his statement but did not put to him that he acted for a retaliatory purpose. SL's perception of a change in referral patterns is noted, but her evidence does not establish that the decision on 21 June 2024 was made for that purpose. The hearsay account of the patient's and daughter's concerns has limited probative value.
7. Although the evidence reveals that the relationship between the Applicant and SL was strained, that circumstance alone does not establish the allegation. Having considered all of the evidence, I am not satisfied that there is sufficient evidence that the Applicant's decision on 21 June 2024 was taken as detrimental action against the DNEs for making complaints about him. I accept the Applicant's evidence that he made a clinical assessment and referred the patient to his general practitioner because he considered that course appropriate for the patient's clinical needs. Allegation 5.1 is not substantiated.

5.2 On 16 July 2024, during a department meeting, you criticised the experience level of nursing staff and insisted that the department needs an additional CNC or NP in diabetes education.

1. The Respondent relied on MT's evidence that, during a meeting on 16 July 2024, the Applicant said that the DNEs were inexperienced and that the Department required an additional CNC and NP.[141] The Respondent also relied on Mr Sommer's evidence that the Applicant raised staffing concerns and said that the Diabetes Unit required an additional CNC or NP. The Respondent submitted that, during the meeting, the Applicant criticised the DNEs' experience and stated that SL would never transition to an NP role, and that these remarks were critical of the DNEs' level of experience.
2. The Applicant submitted that the allegation was only partially substantiated by the Investigator and denied making any critical or disparaging remarks about the DNEs. He submitted that he raised the issue of additional senior nursing roles because the Diabetes Unit had long been understaffed and that discussions about resourcing pre‑dated the DNEs' complaints. He submitted that his comments were directed towards service planning rather than the competence of existing staff, and that the allegation, insofar as it asserted criticism of the DNEs' experience, was not put to him in cross‑examination.
3. The Applicant gave evidence that he spoke positively about the dedication of the DNEs during the meeting. He said that MT identified herself as junior and in need of further training, and that he perceived her tone as hostile. He said that his reference to the need for a CNC and NP arose from ongoing discussions about staffing levels and proposed changes to the Model of Care. He said that he formed the view that SL did not yet have the experience required for a CNC or NP role and denied that his contributions to the meeting were influenced by the DNEs' complaints.
4. MT gave evidence that, during the meeting, the Applicant said that the DNEs were inexperienced and that the Department required an additional CNC and NP. She said that when Dr Kormas reminded the Applicant that SL was the TNP working towards a substantive NP role, the Applicant responded, in words to the effect that SL would never transition into that role.
5. Mr Sommer gave evidence that the Applicant criticised the experience of the DNEs and said that the Department required another CNC or NP. He said that Dr Kormas responded that the Department would soon have a NP which he understood to refer to SL, and that the Applicant replied, "maybe not". He disagreed with the Applicant's account that the Applicant had said SL had the experience required for an NP role. He said that the Applicant asked MT whether she was willing to triage patients and that MT responded that she was junior, required further training, but would be willing to do so with appropriate training. He described MT's response as quiet and professional and said it was not hostile.
6. In cross‑examination, Mr Sommer accepted that the Applicant was raising staffing issues and that the service was understaffed. He stated that the Applicant asked MT about triage "rather rudely". He rejected the suggestion that he disliked the Applicant, stating instead that he did not like the manner in which the Applicant spoke to or treated the DNEs.
7. Having considered the evidence, I accept that the Applicant raised the potential need for an additional CNC and NP during the meeting, as that aspect of the discussion was consistently recalled. The central issue is whether he criticised the DNEs' experience in the terms alleged.
8. MT understood the Applicant's remarks as criticism of the DNEs' experience. Mr Sommer did not recall the specific criticisms attributed to the Applicant and instead characterised parts of the interaction as "rather rude". The allegation was not put to the Applicant in cross‑examination, and his explanation that he raised staffing matters as part of ongoing resourcing discussions was not challenged. There is no contemporaneous record of the language alleged, and the accounts differ as to what was said and how it was conveyed.
9. In these circumstances, while some of the conduct described occurred, the evidence does not establish with sufficient confidence that, during the meeting on 16 July 2024, the Applicant criticised the DNEs' experience level or insisted on additional senior nursing roles as a form of detrimental action in response to the complaints made about him. Allegation 5.2 is not substantiated.

5.3 Since 23 July 2024, you have taken steps to prevent the DNEs from providing support to your Tuesday clinic from Level 5, including by: (a) Directing the Registrars not to call the DNEs with referrals. (b) Directing the Registrars that the patients can only be seen on Level 6 and cannot be sent to Level 5. (c) Directing other staff not to direct patients to Level 5. (d) Directing patients to tell the DNEs they will not go to Level 5, despite there being a risk assessment that provides that the DNEs can remain on Level 5 when performing their duties.

1. The Respondent relied on text messages and Microsoft Teams communications between AZ and various Registrars indicating that the Applicant had instructed them that all patients were to be seen on Level 6.[142] The Respondent also relied on the evidence of AZ that the Applicant wrote on the bottom of the referral forms, "No DNE attendance to high‑risk MDT clinic".[143] The Applicant submitted that he did not take steps to prevent the DNEs from attending his Tuesday clinic and denied acting in response to the DNEs' complaints. Further, he submitted that he had legitimate reasons for raising concerns about patients being required to move between Level 5 and Level 6 and that this, rather than any retaliatory intention, explained his actions.[144]
2. The Applicant was cross‑examined at length about this issue. He accepted that he knew the service operated as an outpatient clinic, requiring patients to travel to attend appointments, and that he was aware of the risk‑mitigation strategy implemented following the DNEs' complaints, under which the DNEs were permitted to see patients on Level 5. His explanation that he nevertheless instructed staff and patients to avoid Level 5 because of safety concerns was inconsistent with that knowledge. His evidence was also inconsistent with communications from clinical managers endorsing the risk‑mitigation strategy that allowed the DNEs to attend to patients on Level 5.
3. The risk‑mitigation strategy provided in writing on 7 August 2024 stated that the DNEs were to remain working on Level 5. The risk‑mitigation strategy provided in writing on 7 August 2024 stated that the DNEs were to remain working on Level 5. In his evidence in reply, the Applicant recalled a conversation with Dr Kormas in which he said he was aware of the allegations by the DNEs and Dr Kormas advised him that the DNEs would attend to their duties on Level 5 and not come to the clinic on Level 6.[145]
4. I am satisfied on the evidence that, by late July 2024, the Applicant was aware of that arrangement, or ought reasonably to have been aware of it, and that he was also aware by that time that complaints had been made by the DNEs concerning his conduct. Against that background, directions that had the effect of preventing patients from attending Level 5 were inconsistent with the arrangement in place.
5. Having considered the evidence, I accept that the Applicant gave directions that had the effect of preventing the DNEs from supporting the Tuesday clinic from Level 5. The contemporaneous messages support that account. Those directions were inconsistent with the risk‑mitigation arrangements that the Applicant knew were in place and which specifically permitted the DNEs to remain on Level 5. The Applicant's stated concern regarding patient safety is not supported by the guidance provided to him by clinical managers. In these circumstances, I am satisfied that the directions were not motivated by a genuine clinical concern but were given in response to the complaints made by the DNEs. Allegation 5.3 is substantiated.

5.4 On 23 July 2024, you contacted SL's university, advising that SL had not reached out to you as a mentor, despite you agreeing to terminate the mentorship on 24 November 2023.

1. The Investigator did not substantiate this allegation as a breach of policy, and the Applicant denied it. However, the Commission must make its own findings on the evidence. The contemporaneous material warrants closer examination, particularly as the Respondent pressed this allegation at the hearing and the Applicant was cross‑examined about it at some length. I note that the reference to 23 July 2024 is incorrect. The relevant email was sent on 18 July 2024. The date of 23 July 2024 refers to when the University contacted SL.
2. At 7.52pm on 18 July 2024, in response to an email to clinical mentors from the University, the Applicant sent an email reply which stated:

"Dear Vanessa, I was wondering if we could discuss the trainee I am supposed to be supervising. I have not had any official contact from my trainee SL since November 2023. As per my assessments until November, SL failed to perform the necessary tasks required under her curriculum and is not progressing well. I am worried about the safety of our patients if such trainees are awarded NP certificates."

1. At 10.14 am on 23 July 2024, SL received an email from the University advising that it had been contacted by the Applicant, who expressed concern that he had not heard from SL "as his mentee" since November 2023 and queried when she had changed clinical mentor and why he had not been informed.
2. SL responded at 12.20 pm the same day. She explained that the mentoring relationship had concluded at their scheduled meeting on 29 November 2023 and that Dr Benjamin Kwan had assumed the role of mentor in February 2024. She stated that she had not notified the University earlier due to workplace stress arising from deterioration in the relationship with the Applicant. SL rejected the Applicant's implication that she had failed to notify him of the termination and maintained that the mentoring relationship had been mutually concluded on 29 November 2023.
3. The Applicant denied initiating contact with the University. He said he was responding to an email received on 18 July 2024, that SL had not informed him the mentoring relationship had ended, and that the Investigator had found no breach of policy. In cross‑examination, he maintained that he remained SL's mentor because the relevant paperwork had not been completed. When it was put to him that the mentoring relationship had effectively ceased in November 2023, he responded, "I don't agree" and "I disagree with that". When asked whether he had contacted the University, he said, "I did not. I responded to university questions".
4. That explanation is inconsistent with the contents of his email of 18 July 2024, described by the respondent as inviting mentors "to attend a session",[146] as well as the generic nature of the University email to which he replied, which did not invite or seek any specific comment about SL, and the University's subsequent email to SL stating that it had received an email from him raising concerns that he had not heard from SL since November 2023.
5. The Respondent relied on contextual evidence from AZ and MT concerning SL's fear of repercussions and the deterioration of workplace relationships. Exhibit R19 contains the relevant email chain commencing on 18 July 2024. It demonstrates that the Applicant's communications went well beyond responding to a general administrative email. He asserted that SL had not had "official contact" with him since November 2023, that she was not progressing, that she had failed to perform required tasks, and that she posed a patient‑safety risk. He did not disclose that SL had made complaints about him or that he was the subject of an investigation.
6. The Respondent submitted that these omissions were misleading and consistent with retaliatory conduct. The Applicant submitted that the mentoring arrangement had not been terminated, that he had always left it to SL to seek guidance as required, and that she had simply ceased contacting him. He relied on his continued listing as mentor in University records. His counsel challenged SL's credibility and contended that little of the Respondent's case remained once unsubstantiated allegations were put aside.
7. The Respondent submitted that the Applicant's evidence was evasive and selective, pointing to the inconsistency between his written statement (that the mentorship ended in November 2023) and his oral evidence that it continued "officially" due to incomplete paperwork. Reliance was placed on the transcript and the contents of Exhibit R19.
8. I do not accept the Investigator's conclusion. The contemporaneous documents attract significant weight. Exhibit R19 and the University's wording are inconsistent with the Applicant's denials and with his reliance on "official" mentor status. His cross‑examination answers do not withstand scrutiny in light of the email trail and the absence of any legitimate reason to raise adverse performance or patient safety concerns about SL with the University in July 2024.
9. On the evidence I accept, the mentoring relationship between the Applicant and SL had, in substance, come to an end in November 2023, and Dr Kwan assumed that role in practice, albeit not formally, in February 2024. The Applicant's reliance on his continued designation as SL's official mentor, in the absence of completed paperwork, reflects a formal or semantic position rather than the practical reality of the arrangements then in place. His limited engagement thereafter, including leaving all initiative to SL, is consistent with that conclusion.
10. There was no credible administrative explanation for the July 2024 communication. Its content, the omission of relevant context, the belated raising of performance and patient‑safety concerns, the failure to utilise established workplace processes, and its timing shortly after complaints had been made against the Applicant collectively support the inference that the contact was retaliatory.
11. I have approached the evidence with appropriate caution given the seriousness of the allegation. The alternative explanations advanced by the Applicant are inconsistent with the established facts and are not accepted. The communications with the University were inappropriate, misleading in material respects, and motivated by impermissible considerations. They constituted detrimental action.
12. While the Investigator did not regard the conduct as a breach of policy when viewed in isolation, the established primary facts satisfy me that it fell below the standards expected of a senior clinician and constituted misconduct. The conduct forms part of the broader pattern relevant to my overall assessment, including reinstatement.
13. The Applicant's explanation was fully explored at the hearing and has been taken into account but is not accepted for the reasons given. I am satisfied that the finding is based on evidence that was properly ventilated and that no issue of procedural fairness arises. Accordingly, Allegation 5.4 is substantiated.

5.5 On 24 July 2024, you lodged an IMS report alleging SL had mis-instructed a patient on 17 January 2024, despite you seeing that patient in February 2024 and May 2024 and there being no adjustment to the patient's dosage.

1. The Respondent relied on the evidence of Ms White, SL, AZ and MT in support of its submission that the IIMS report lodged by the Applicant on 24 July 2024 lacked a clinical foundation and was made several months after the incident is said to have occurred in January 2024. It submitted that the report misrepresented SL's conduct and was lodged in the context of the earlier complaints raised by the DNEs. The Applicant denied this, maintaining that he submitted the report for patient‑safety and quality‑improvement reasons.
2. The Respondent further submitted that SL's evidence, in which she denied mis- instructing the patient, together with the Applicant's February and May 2024 review notes showing that he continued the same insulin dosage, demonstrated that there was no clinical basis for the IIMS report. It submitted that those matters supported its contention that the report formed part of the Applicant's detrimental response to the DNEs' complaints.
3. Ms White gave evidence that the Applicant had not raised any performance concerns about SL with her, as SL's manager, at any time prior to lodging the IIMS report. SL gave evidence that she only became aware of the report on 22 August 2024, when contacted by nursing management, and that she regarded the several‑month delay between the alleged incident and the report as significant.
4. AZ and MT each gave evidence that they became aware of the IIMS report only after SL informed them that she had been contacted by nursing management. They considered that SL had acted appropriately in managing the patient, including contacting the general practitioner, discussing the matter with an Endocrine Registrar, and ensuring the patient was reviewed again before the IIMS report was lodged. AZ and MT also gave evidence that the timing of the report did not accord with the incident‑reporting timeframes under the NSW Health Incident Management Policy.
5. The Applicant's evidence was that the issue arose in January 2024, when he believed SL had given incorrect dosage advice. He accepted that he continued the same dosage at his reviews in February and May 2024. He said that in May 2024 he learned that SL had not apologised to the patient or lodged an incident report and that he subsequently submitted the IIMS report for patient‑safety and quality‑improvement reasons.
6. The Applicant submitted that the allegation of retaliatory intent was not put to him in cross‑examination. He said that his state of mind was central to the allegation and that fairness required the Respondent to challenge his explanation directly, relying on the principles associated with Browne v Dunn. The Respondent submitted that the allegation was framed as detrimental action based on the Applicant's conduct rather than proof of a subjective state of mind, that cross‑examination on intention was unnecessary, and that the continuation of the same dosage in February and May 2024, together with the timing of the report, undermined the Applicant's stated rationale.
7. I am satisfied that the IIMS report constituted detrimental action against SL. Although retaliatory intent was not expressly put to the Applicant in cross‑examination, the allegation and its factual basis were clearly raised in the written material, and the Applicant addressed his reasons in his evidence. In these circumstances, there is no procedural unfairness and no breach of the principles associated with Browne v Dunn.
8. I do not place significant weight on the Applicant's explanation that the IIMS report was supported by clinical concerns. There is no contemporaneous clinical records indicating any deterioration in the patient's condition or linking such deterioration to the instruction attributed to SL. The insulin dosage remained unchanged at the Applicant's reviews in February and May 2024.
9. The Applicant's further explanation that he lodged the report because SL had not apologised to the patient does not provide a sufficient basis for submitting an IIMS report. Having regard to the timing of the report, the absence of supporting clinical documentation, and the context in which it was made, I am not satisfied that it was submitted for patient‑safety reasons. Allegation 5.5 is substantiated.

5.6 On 26 July 2024, despite an earlier request from Ms White for you to contact her with any concerns you wanted to raise with SL's university, you again contacted SL's University advising incorrectly that her new mentor Dr Benjamin Kwan did not look after diabetes patients.

1. The Respondent relied on Exhibit R19 to establish that the Applicant sent the email to the University on 26 July 2024, being the same email set out under Allegation 5.4. The email was sent in reply to a general circular from Ms Vanessa Clothier addressed to all clinical mentors.
2. In that response, the Applicant raised concerns regarding SL's training. He asserted that he had not had "official contact" with her since November 2023, expressed the view that she was not progressing and had failed to perform required tasks, and raised concerns about patient safety if such trainees were awarded NP certificates. The email also included a statement regarding Dr Kwan's clinical practice which the Respondent submitted was incorrect.
3. The Applicant denied that Ms White had directed him not to contact the University.[147] He accepted that she had made a request that he raise any concerns with her but said he did not understand that request as preventing him from replying to a general communication addressed to all mentors. He said his response was intended to provide information relevant to SL's training.
4. I am satisfied that Ms White requested that the Applicant raise any concerns about SL with her, rather than contacting the University directly. The Applicant accepted that such a request was made but said he did not understand it as preventing him from replying to a general communication addressed to clinical mentors, given that he regarded himself as remaining SL's official mentor because the mentoring arrangement had not been formally terminated. I do not accept that interpretation.
5. In these circumstances, I am satisfied that the Applicant's further email to the University was contrary to Ms White's reasonable request and, when viewed in light of the earlier conduct addressed under Allegation 5.4, reflects adversely on the Applicant's motivations in contacting the University again. The disregard of that request undermines the explanation offered and supports the conclusion that the communication amounted to further detrimental action towards SL. Allegation 5.6 is therefore substantiated.

1. It is apparent from the findings already made that I do not accept the Applicant's general submission that the Respondent failed to establish an adequate evidentiary foundation for findings of misconduct.
2. I have not accepted every allegation relied upon by the Respondent. Nor do I accept the contention that the evidence of AZ, MT, SL and Ms Wu was vague, speculative or unreliable. While aspects of their accounts varied in detail and were not always consistent in every respect, I am satisfied that, taken as a whole, their evidence was generally coherent and persuasive on the central matters in dispute, except where I have expressly indicated otherwise. Where that testimony was supported by contemporaneous material or other reliable evidence, it provided a sufficient foundation for findings to be made. In those instances where the evidence did not meet the requisite standard, I have made no adverse finding.
3. In relation to Allegations 1.3(b), 1.3(d), 1.5, 1.8, 1.11, 1.12, 1.13, 1.14 (in part), 1.15, 1.17, 1.19 (in part), 1.20, 1.21, 1.22, 1.25, 1.26, 1.27, 1.28, 1.32, 1.33, 2.1, 2.3, 2.4, 2.5 (in part), 4.1(b), 5.3, 5.4, 5.5 and 5.6, I am satisfied that the Respondent has discharged its onus. In each of those instances, the Respondent relied upon evidence that was unchallenged, corroborated by contemporaneous material, internally consistent with witness testimony, or otherwise consistent with the broader factual matrix. In some respects, aspects of the Applicant's own evidence aligned with the Respondent's account and further supported those conclusions.
4. In relation to Allegations 1.3(c), 1.4, 1.9, 1.16, 1.29, 1.30, 1.34, 3.1, 3.2, 4.1(a), 4.2, 5.1 and 5.2, I am not satisfied that the Respondent has discharged its onus. That conclusion is reached having regard to the totality of the evidence, including the investigation materials, the decision‑making documents and the oral testimony of the relevant witnesses.
5. The Applicant also relied on the Respondent's failure to put certain allegations to him in cross‑examination. I have addressed that submission in the assessment of the individual allegations where it was raised. While it is generally preferable for allegations to be put squarely, the absence of such questioning is not determinative where the matters were clearly raised in the written material, and the Applicant had a fair opportunity to respond. Consistently with the approach taken above, I have had regard to the manner in which particular allegations were tested, or not tested, in determining the weight to be given to the Respondent's case.
6. While not all allegations relied upon by the Respondent were made out, it is well established that an employer is not required to prove every allegation in order to justify dismissal. On the findings I have made, the Applicant's misconduct was neither trivial nor isolated in nature and was not confined to a single lapse. Having regard to its nature, repetition and context, the substantiated misconduct, considered on its own, was capable of justifying dismissal. The conduct fell below the standards of professional conduct and workplace behaviour required in the Applicant's role and was of sufficient gravity to warrant termination of employment. In light of those findings, I do not consider dismissal to have been a disproportionate disciplinary response, nor that it visited disproportionate personal consequences upon the Applicant. In those circumstances, termination was a proportionate response and the dismissal was not harsh, unjust or unreasonable.
7. In reaching my conclusions, I have had regard to the impact of the substantiated conduct on the DNEs. SL was the staff member most directly and significantly affected. Her evidence concerned conduct directed to her personally and described ongoing feelings of anxiety, distress and humiliation, together with concern about adverse consequences for her employment. I have given that evidence substantial weight, as it is consistent with the findings I have made and the context in which the conduct occurred. I have also taken into account the evidence of MT and AZ concerning the consequential impact of that conduct on them and on the working environment generally. I have had more limited regard to the evidence of Ms Wu, which was primarily observational in nature and provides contextual support. In referring to impact, my conclusions are confined to the conduct I have found substantiated and do not extend to matters not upheld.
8. I have also had regard to the fact that the Applicant had a previously unblemished disciplinary record, and to the impact of the dismissal on the Applicant. I accept that the dismissal resulted in a loss of income and as described in his evidence, had personal and financial consequences for him, including in supporting family members. I have taken those matters into account. For the reasons already given in relation to the seriousness and nature of the misconduct found, those consequences do not render the dismissal harsh, unjust or unreasonable. I also note that the dismissal brought the Applicant's employment with the Respondent to an end but did not, of itself, operate as a permanent bar to the practice of his profession. That consideration forms part of the overall proportionality assessment and does not diminish the gravity of the misconduct found.
9. A further relevant consideration in assessing harshness is the Applicant's response to findings and conclusions that were contrary to his contentions. Although the Applicant was entitled to hold and express professional disagreement, the manner of his response in these proceedings, including advancing alternative explanations such as assertions of collusion, has not demonstrated insight into the consequences of the conduct found to have occurred. That consideration is relevant in assessing whether dismissal was disproportionate to the misconduct established.
10. I am not satisfied that the dismissal was harsh, unjust or unreasonable. In light of that conclusion, no question of remedy arises for determination. The application under s 84 of the IR Act is therefore dismissed.
11. The remaining claims under ss 164 and 213 of the IR Act are dealt with separately below.

Victimisation Application (s 213 of the IR Act)

1. On 3 April 2025, the Applicant lodged an application under s 213 of the IR Act alleging contraventions of ss 210(1)(e) and (g). The primary relief sought was reinstatement as a Staff Specialist in the Department of Endocrinology and Metabolism, and as Director of the Diabetes Unit at Concord Hospital.[148]
2. In the form relevant to these proceedings, s 210 relevantly provides:

(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person -

(e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or

(g) participates, or proposes to participate, in proceedings relating to an industrial matter, or

(2) In any proceedings under s 213 to enforce this section, it is presumed that an employee who suffers a detriment as a result of action by the employer was victimised because of the matter alleged by the applicant under subs (1). The presumption is rebutted if the employer satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

1. The operation of s 210 in that form is relatively well settled and, at the level of applicable principle, was not the subject of dispute in these proceedings.[149]
2. By way of brief summary, in the context of these proceedings its operation may be reduced to the following key propositions:

(1) First, 'victimise' in s 210 means conduct by an employer which causes an employee to suffer some detriment, such as (without being exhaustive) some injury, hardship, or loss, or otherwise to be subject to harsh or unfair treatment in or in relation to his/her employment.

(2) Second, s 210(2) establishes a rebuttable presumption of victimisation where:

(a) the employee establishes that they have suffered a detriment;

(b) the employee identifies a protected matter in s 210(1) and establishes any primary facts necessary to demonstrate the existence of that matter; and

(c) the employee alleges that the protected matter was a substantial and operative reason for the employer causing the detriment.

(3) Third, the employer may rebut the presumption by satisfying the Commission that the protected matter alleged was not a substantial and operative cause of the detrimental action.

(1) The failure to advise the Applicant that a recommendation to dismiss him was being made, prior to the recommendation being acted upon. The detriment is said to be the loss of an opportunity to bring an unfair dismissal application (based on a threat of dismissal) and seek an interim order preventing dismissal (Detriment 1).

(2) The Applicant's dismissal (Detriment 2).

1. There is no dispute that a dismissal (Detriment 2) can constitute a detriment for the purposes of s 210, nor that the Applicant alleges that his dismissal occurred for reasons that include the protected matters in s 210(1)(e) and (g) of the IR Act. The issue for determination in relation to Detriment 2 is whether the Respondent has rebutted the presumption under s 210(2) in respect of that detriment. That will be addressed below.
2. As for Detriment 1, the Respondent's submissions are largely directed to the reason why the relevant decision-maker, Mr Nathan Rudd, the Deputy Director and Legal Counsel, Workforce for the Sydney Local Health District, recommended the appropriate disciplinary action was the dismissal of the Applicant. It does, however, assert the Applicant was in fact given the opportunity to be heard on whether a recommendation to dismiss him ought be made and was in fact heard on that issue.[150] As I understand the Respondent's argument, it is not only that the reason the recommendation to dismiss was made had nothing to do with a protected characteristic.[151] It is also argued:

(a) The Respondent never promised or represented (by way of undertaking of merely the giving of notice), that it would delay acting on any recommendation ultimately made (notably after the Applicant's 31 January 2025 response to the Show Cause Letter).

(b) The Respondent was under no obligation to delay the implementation of any disciplinary action ultimately decided upon (again, noting this is after the Applicant had been given the Show Cause letter and substantively responded to it on 31 January 2025); and

(c) The Applicant suffered no detriment (because he was advised of such a recommendation by way of the Show Cause Letter and was heard on that recommendation by way of a detailed submission provided on 31 January 2025).

1. As I understand the substance of that submission, the Respondent contends there was no detriment sufficient to sustain a finding of unlawful victimisation.
2. The Applicant bears the onus of establishing that he was subjected to a detriment by the Respondent. The Respondent's position, in substance, is that the conduct I have described as Detriment 1 does not amount to a detriment capable of grounding a finding that the Applicant was victimised. That issue raises considerations distinct from the rebuttable presumption under s 210(2) of the IR Act and must be determined first.

1. As noted above, the concept of victimisation is grounded in the concept of a detriment imposed by an employer on an employee. In order to understand how Detriment 1 is said to have caused the Applicant an injury, hardship, loss or otherwise cause him to be subject to harsh or unfair treatment in or in relation to his employment, it is convenient to briefly restate some uncontroversial facts.
2. As set out above, in June 2024, allegations were raised against the Applicant pertaining to workplace conduct. They were the subject of an external investigation resulting in an investigation report provided to the Respondent on 19 November 2024. On 4 December 2024, the Respondent wrote to the Applicant, providing him the investigation report and indicating that a number of findings of misconduct had been made against him. The letter (the Show Cause Letter) included the following:[152]

"Your actions, as substantiated, raises significant concerns towards SLHD and falls well below the conduct expected of a senior staff member of SLHD. Furthermore, your actions posed significant risk to staff and SLHD as you have failed to exercise a duty of care diligently in undertaking your role as a Staff Specialist and Director of Diabetes.

In light of the substantiated findings, including that you made vexatious allegations and engaged in significant breaches of policy, I am writing to provide you with an opportunity to respond to the findings of the investigation and to show due cause as to why a recommendation should not be made to the Chief Executive for the termination of your employment on the grounds of misconduct and breaches of the NSW Health Code of Conduct." (Emphasis added)

1. On 31 January 2025, the Applicant provided a lengthy and detailed written response to the Show Cause Letter, including as to the findings of misconduct that, in substance, rejected the findings. It otherwise argued the procedure adopted was flawed and submitted that a recommendation for his dismissal ought not be made.
2. On 5 March 2025, the Respondent informed the Applicant that the Decision-Maker was re-considering the findings in light of the written response, but by 24 March 2025 the Respondent had advised the Applicant it had decided not to change any of the substantiated findings.
3. On 27 March 2025, the Respondent dismissed the Applicant from his appointment (termination letter emailed on 27 March 2025 at 12.39pm), ostensibly (and the Respondent says actually), for the substantiated findings of misconduct.
4. In that context, where a Show Cause Letter had already foreshadowed a recommendation of termination and the Applicant had responded to it, there is an obvious illogical circularity in the proposition that something said in response to a threatened dismissal could itself be a substantial and operative reason for the threatened dismissal.
5. The Applicant's answer rests on two asserted propositions concerning the period between 31 January 2025, when he provided his response to the Show Cause Letter, and 27 March 2026, when he was dismissed. They are:

(1) He asserts that he had foreshadowed in correspondence to the Respondent that he anticipated making an application to this Commission alleging that the Respondent had threatened to dismiss him, and that he intended to seek interlocutory orders restraining any dismissal until those proceedings were finalised. He also sought an undertaking that he would not be dismissed until those proceedings were completed, or at least that he would be given notice of any recommendation to dismiss him seven days before it was acted upon. By way of example, in a letter dated 28 February 2025, his legal representatives wrote:

"As you know, we act for Dr Avinash Suryawanshi.

We understand, from the letter from Gina Finocchiaro, Director Workforce & Corporate Operations, to Dr Suryawanshi dated 4 December 2024 (Show Cause Letter) and our letter dated 31 January 2025, that the Sydney Local Health District is currently considering whether to recommend the dismissal of Dr Suryawanshi based on findings accepted by Mr Michael Morris, the appointed decision-maker, that were contained in an investigation report prepared by Sparke Helmore Lawyers.

As set out in our letter dated 31 January 2025, Dr Suryawanshi denies that he engaged in much of the conduct, denies that his conduct constituted misconduct, contends that he was not afforded procedural fairness during the investigation and maintains that the findings do not warrant dismissal (especially in light of his personal circumstances and favourable work history).

Dr Suryawanshi is proposing to make an application to the Industrial Relations Commission of NSW under section 84 of the Industrial Relations Act 1996 (NSW) in respect of the recommendation of dismissal. Dr Suryawanshi is also proposing to seek an interim order, an interlocutory order and a final order under section 89(7) that the Health Secretary not dismiss him.

Given the proposed application, we seek a written undertaking from the Health Secretary not to dismiss Dr Suryawanshi from his employment notice." Emphasis added

(2) Over the course of March 2025, the Respondent repeatedly informed the Applicant that it would notify him if any recommendation to terminate his employment was ultimately going to be made.[153] It was said the Respondent had "provided express representations that it would"[154] advise the Applicant of any such recommendation.

1. As I understand the Applicant's argument as initially framed:[155]

(1) by failing to advise the Applicant of a recommendation to dismiss him, and thereby denying him at least an opportunity to commence the foreshadowed unfair dismissal proceedings and seek interlocutory orders restraining his dismissal, he was treated unfairly, that is, he was caused to endure a detriment

(2) the Respondent chose not to advise him of the recommendation to dismiss him before it was acted on because the Applicant had foreshadowed such proceedings, and that this was done in order to deny him the opportunity to commence the foreshadowed unfair dismissal proceedings and seek interlocutory orders restraining his dismissal.

1. By his final closing submissions, the Applicant's argument had evolved somewhat. By that time the argument, broadly summarised, was to this effect:[156]

(1) From at least 28 February 2025, the Respondent was aware of the Applicant's intention to initiate unfair dismissal proceedings, based on a threat of dismissal (the foreshadowing of such proceedings being conduct squarely engaging a claim under s 210(1)(e) of the IR Act and/or proposing to participate in proceedings for the purpose of s 210(1)(g).

(2) Throughout its dealings with the Applicant post 31 January 2025 the Respondent, specifically Mr Rudd, "intentionally engaged in evasive conduct, whereby he would not provide a clear or straight answer" to inquiries by the Applicant's lawyers. I understand the reference to "inquiries" to be directed to a request for an undertaking that the Applicant would not be dismissed, and/or a request for notice of any recommendation to dismiss the Applicant prior to it being acted upon. It was said the "evasive conduct" was "undertaken in order to offset the prospect of the Applicant commencing the threatened dismissal proceedings".

(3) Mr Rudd undertook to inform the Applicant about any recommendation he made to the Decision-Maker, Ms Willcox. Despite this, the Respondent never disclosed what the recommendation was.

(4) The Respondent's conduct over the period 24 March 2025, when the Applicant was advised the initial misconduct findings had been affirmed upon review, to the Applicant's termination on 27 March 2025, was "highly peculiar in that [the Respondent] sought to hurriedly make the termination decision". It was said "the matter was particularly complex", noted the brief provided to Ms Willcox was over 750 pages in length, and that "Ms Willcox did not have the time or ability to properly read the Brief provided to her by Mr Rudd prior to making her decision".

(5) The available and most probable inference to be drawn from the above, was that the Applicant's threat of proceedings "materially influenced the Respondent's decision to promptly terminate his employment".

1. The inference was also said to be informed by an asserted inconsistency between the evidence of Mr Rudd and Ms Willcox given in cross-examination, as to whether the Applicant would have required some evidence of what Mr Rudd's recommendation was before he could commence threatened dismissal proceedings[157] (the suggestion being Mr Rudd withheld the substance of his recommendation to Ms Willcox in order to avoid giving the Applicant that evidence and thereby avoiding the threatened dismissal application).
2. I do not accept that any of the conduct of the Respondent relied upon to ground Detriment 1 imposed or caused the Applicant to suffer a detriment capable of supporting a finding of victimisation. Nothing the Respondent did caused the Applicant to suffer any injury, hardship or loss, nor did it otherwise cause him to be subjected to harsh or unfair treatment in, or in relation to, his employment.
3. There are at least two reasons for that:

(1) First, the Show Cause Letter expressly invited the Applicant to "show due cause as to why a recommendation should not be made to the Chief Executive for the termination of your employment on the grounds of misconduct and breaches of the NSW Health Code of Conduct". The Applicant responded in detail on 31 January 2025. There was no other or alternate recommendation ever made to the decision-maker. Under the relevant policy framework, the Applicant was entitled to make submissions to the decision-maker in relation to the proposed disciplinary action before a final decision was taken:[158]

"8.3 Seeking a response from a staff member regarding proposed disciplinary action

Any disciplinary action proposed by a decision-maker in response to a staff member's misconduct must be communicated to the staff member in writing. The staff member must be given an opportunity to make submissions to the decision-maker in relation to the proposed disciplinary action before a final decision about it is taken.

The decision-maker can seek a response to proposed adverse findings and proposed action at the same time (see also Section 7.5.2).

A reasonable period of time (usually two calendar weeks, unless otherwise agreed) must be allowed for a response. Any such response must be considered by the decision-maker before a final decision is made about the action to be taken."

(2) The Applicant was afforded that opportunity and did avail himself of it. I accept he was not denied procedural fairness.

(3) Second, I accept that the Respondent was aware that the Applicant had foreshadowed the commencement of unfair dismissal proceedings, as set out in the Applicant's letter dated 28 February 2025, and that the foreshadowing of proceedings of that kind was capable of enlivening s 210(1)(e) or (g) of the IR Act. Neither proposition was disputed by the Respondent. I do not accept the other central elements of the Applicant's argument in relation to Detriment 1.

1. The claim that, in March 2025 following the Show Cause Letter and the Applicant's response, the Respondent repeatedly informed the Applicant that he would be notified if any recommendation to terminate his employment were ultimately made. This is not established on the evidence. The Respondent did not give any express representation that it would advise the Applicant of any such recommendation.
2. Nothing done by Mr Rudd in the period following the submission of the Applicant's response to the Show Cause Letter can reasonably be characterised as evasive, or as involving a failure to provide clear or direct answers to inquiries from the Applicant's lawyers.
3. The evidence on this issue is as follows:

(1) On 28 February 2025, the Applicant informed the Respondent that he proposed to make an application under s 84 of the IR Act in respect of a threatened dismissal, namely the recommendation of dismissal contained in the Show Cause Letter. He further indicated that he proposed to seek interim, interlocutory and final relief under s 89. The Applicant also sought an undertaking that he would not be dismissed pending the determination of that application, or alternatively that he be advised of any recommendation to dismiss him before it was acted upon.

(2) On 5 March 2025,[159] the Respondent informed the Applicant that the Decision-Maker was reconsidering the findings in light of the written response provided on 31 January 2025. The letter otherwise stated:

"After receipt of the response to the Show Cause Letter and the alleged deficiencies with the investigation report, as requested, I reverted to the decision maker. The decision maker then sought clarification from the investigator concerning those issues raised.

At the current time, the decision maker is considering those matters. As a matter of due course, the decision maker would then inform me of any change or otherwise to his original acceptance of the investigation report. In my role, I would then need to consider what, if any, recommendation I would make to the CE.

I am not in any position to give an undertaking to provide seven days' notice prior to any dismissal occurring (if that was to occur).

I acknowledge Dr Suryawanshi's intention to file a threatened unfair dismissal application. That is a matter for him to consider as to whether he believes such an application ought to be currently filed."

(3) On 6 March 2025, the Applicant's legal representatives again wrote to the Respondent, referring to the Respondent's earlier indication that the Decision-Maker would be revisiting their acceptance of the earlier findings, and that any such review of findings might influence the potential for a recommendation for dismissal. In that context, they said:[160]

"In all the circumstances, we understand that no decision has yet been made to recommend dismissal to the Chief Executive of the SLHD and that such a decision will be made by you (if at all) after receipt of information and advice from the Decision Maker.

Additionally, given that Dr Suryawanshi has not been contacted by the investigators or the Decision Maker since 31 January 2025 and given that the Decision Maker is seeking clarification from the investigators, it is likely that the Decision Maker (if deciding to accept the findings in the investigation report) will base his decision on matters on which Dr Suryawanshi has had no opportunity to comment upon. Accordingly, we seek an undertaking from you to afford Dr Suryawanshi with an opportunity to so comment (for a period of seven days) before any decision is made by you to recommend dismissal to the Chief Executive."(Emphasis added)

(4) Mr Rudd responded less than 10 minutes later, saying:

"Thank you. You have my position as per previous email yesterday

I acknowledge Dr Suryawanshi opposes acceptance of the findings in the investigation report and opposes the possible recommendation of dismissal."

(5) The Applicant suggested that by this response Mr Rudd was being "evasive".[161] I do not accept that characterisation. Mr Rudd's answer given the day before, although directed to an undertaking sought for a different purpose, made clear that he would not give an undertaking to provide seven days' notice prior to any dismissal if he were to recommend dismissal to the CE. In responding as he did, Mr Rudd was simply restating that position. That response was direct and addressed what was asked, whatever the reason for it.

(6) On 12 March 2025, the Applicant's lawyers acknowledged Mr Rudd's email of 6 March and stated, "We continue to reserve our client's rights, including the tender of this correspondence in support of an application preventing our client's threatened dismissal".[162]

(7) On 17 March 2025, the Applicant inquired of the Respondent as to three matters:

(i) whether the decision-maker had re-considered the findings,

(ii) what if any changes were made to said findings, and

(iii) whether "our client will be afforded the opportunity to respond, if necessary, to any recommendation you may make to the CE?".[163]

(8) Mr Rudd responded less than an hour and a half later, stating: "I have followed up and can advise the decision‑maker has not finalised consideration of the matters." It was suggested that, by not answering question 3, Mr Rudd was being evasive. I do not accept that characterisation. At that point, it was premature for Mr Rudd to state whether the Applicant would be afforded a further opportunity to respond to any proposed or recommended disciplinary action. Although it may have been open to Mr Rudd, having regard to the applicable policy framework, to indicate that the Applicant would be invited to respond to any disciplinary action different from that reflected in the Show Cause Letter, his response to the Applicant's enquiries was direct and cannot reasonably be characterised as evasive.

(9) On 19 March 2025, the Applicant's lawyers sent a further email relevantly saying "Noted. Would you please let us know when the decision-maker has finalised his consideration of the matter. Also, we would be obliged for an answer to question 3."

(10) On 24 March 2025, the Respondent (Mr Rudd) informed the Applicant that the decision-maker (Mr Morris) had re-considered the findings but had decided not to revise the earlier substantiated findings. The letter also said (amongst other things):[164]

"Dr Suryawanshi has already been given and taken the opportunity to respond to the report and my show cause letter. Given no change from the Decision maker, I do not believe there is anything further to respond to. I have previously acknowledged that Dr Suryawanshi opposes acceptance of the findings in the investigation report and opposes any possible recommendation of dismissal.

As a matter of course, it would then be a matter for the Chief Executive to determine what if any action was required based on any recommendation made. I will advise you at the time if I make any recommendation. However, I do not propose to advise of the detail of the recommendation. That will be for the Chief Executive to review any recommendation I may make.

Please be assured I will not unduly delay my review." Empasis added

1. Mr Rudd gave the following evidence as to why he did not propose to advise the Applicant of is recommendation:[165]

"I did not propose to advise Dr Suryawanshi's solicitors of the detail of my recommendation to the Chief Executive, because:

(a) it is not part of the usual disciplinary process to provide notice of the substance of a recommendation in a disciplinary process; and

(b) whether to accept my recommendation is within the Chief Executive's discretion only. Therefore, I considered it appropriate for only her to know the substance of the recommendation."

1. In his oral evidence, Mr Rudd additionally noted as an experienced lawyer with NSW Health over 16 years, he could only recall one matter (involving an industrial dispute notified by a union, with particular circumstances), where an additional step involving disclosure of a recommendation as part of an internal deliberation had occurred[166] - as he described "its not our policy approach and ...not a practice" of the Respondent to do that.
2. Again, there is nothing evasive in Mr Rudd's response to the Applicant's inquiries. He directly answered 'question 3', noting (correctly), the Applicant had already responded to the Show Cause Letter proposing a recommendation of termination. Also, contrary to the Applicant's initial contention, Mr Rudd did not make an "express representations that [he would]"[167] advise the Applicant of any recommendation to dismiss him. In fact, the evidence showed he expressly said he would not advise of the detail of any recommendation he did make.

(1) On 26 March 2025, the Applicant's lawyers responded by email, saying "Our client notes that you will inform him/us of your recommendation to the CE". (Emphasis added)[168] That was not what Mr Rudd stated in his email of 24 March 2025. Mr Rudd had made it clear that he would advise if he made any recommendation, but that he would not advise of the detail of that recommendation. It is clear from the terms of the email that this is what he conveyed. Any misunderstanding did not arise from a lack of clarity in Mr Rudd's communication. His correspondence cannot fairly be characterised as evasive.

(2) Later that evening (at 7.31pm),[169] the Respondent (Mr Rudd) emailed the Applicant's legal representatives saying, amongst other things:

"I indicated I would advise you at the time if I made any recommendation but I did not propose to advise any detail of the recommendation for the reasons previously indicated.

By way of information and consistent with my email, I have just recently provided a recommendation to the Chief Executive for consideration."

1. By that email, Mr Rudd did precisely what he had indicated he would do. I should add that, given the recommended disciplinary action contained in the brief sent to the Decision-Maker was the same recommended disciplinary action reflected in the Show Cause Letter, there was no obligation, whether arising from policy or from more general principles of procedural fairness, for the Respondent to advise the Applicant that any recommendation had been made. There was likewise no obligation to afford the Applicant any further opportunity to respond to the very same recommendation.

(1) Mr Rudd and Ms Willcox met the following morning, 27 March 2025, at approximately 10am. In the course of that meeting, Ms Willcox accepted the recommendation to terminate the Applicant's employment and signed the recommendation authorising the termination. An internal email from Mr Rudd to a Ms Shirley Chea, Workforce Manager, sent at 11.35am attached a copy of the signed letter of termination and requested Ms Chea "action as required".[170]

(2) On 27 March 2025 at 12.05pm, some two hours after the decision to dismiss had been made (but apparently not yet communicated to the Applicant), the Applicant's lawyers replied to Mr Rudd's email sent at 7.31pm the night before, saying:

"We refer to your email to Scott Chapman of this Firm on 26 March 2025 at 7.31 pm.

There appears to have been a misunderstanding. We had understood your position to be that you would inform us of your actual recommendation to the Chief Executive of Sydney Local Health District (SLHD), such as to dismiss, or not to dismiss or to take no action at all, but, without the detail or reason/s for same. (Emphasis added):

We note that these communications are against a background where a previous recommendation had been made that our client's employment be terminated and we have put SLHD on notice of our client's position, namely that he proposes to make an application to the Industrial Relations Commission of NSW under section 84 of the Industrial Relations Act 1996 (the Act) in respect of a recommendation of dismissal, and is also proposing to seek an interim order, an interlocutory order, and a final order under section 89(7) of the Act that the Health Secretary not dismiss him. In the circumstances, it is unclear to us how your response is consistent with the principles applicable to a model litigant.

We are instructed to, again, ask you what is your recommendation to the Chief Executive? Please inform us by no later than 3pm today, 27 March 2025, failing which we are instructed to file the above-mentioned claim without further notice, and to tender this correspondence in support of same."

1. It is difficult to understand reference to "the principles applicable to a model litigant". Whatever be the obligations of a 'model litigant' in this context (and there was nothing put to me either as to the content of the obligation or the source of any suggested obligation), I do not understand there to be any obligation to stay one's hand from making a final decision (where procedural fairness has been afforded), to enable an interlocutory application of the kind foreshadowed by the Applicant.

(1) To conclude the chronology, Mr Rudd responded at 12.34pm, saying:

"I refer to all my previous email exchanges.

I note that on 5 March 2025 I acknowledged Dr Suryawanshi's intention to file a threatened unfair dismissal application and that it was a matter for him to consider as to whether he believes such an application ought to be currently filed.

I have repeatedly explained my position concerning my role in consideration of the matter. I reject any assertions surrounding any alleged inconsistent approach as a model litigant. At all times, Dr Suryawanshi was afforded procedural fairness in responding to the investigation report and show cause letter.

After due consideration, as indicated last night, I made a recommendation to the Chief Executive. The Chief Executive has today made a determination and I am aware Ms Shirley Chea, Workforce Manager, Concord recently attempted to provide the outcome to your firm acting on behalf of Dr Suryawanshi.

I am aware that Ms Chea called both Mr Chapman's mobile and office number but was unable to make contact. Ms Chea also called Ms Pale's number and was similarly unable to make contact. Ms Chea was attempting to schedule a meeting of the determination that has been made by the Chief Executive. In light of the unavailability of Mr Chapman and Ms Pale, Ms Chea will now call you."

(2) A copy of the Letter of Termination was sent to the Applicant's lawyers at 12.40pm, 27 March 2025.

1. The evidence, including the oral evidence of Mr Rudd given in cross‑examination to which I have had regard, does not support a finding that Mr Rudd was evasive or that he otherwise failed to act unfairly or unreasonably towards the Applicant at any time, and certainly not in the period after 31 January 2025. The Respondent submitted that Mr Rudd did not act so as to induce any belief that the Applicant would receive the substance of the recommendation he would make to the CE but instead had explicitly advised the Applicant's lawyers that he would not do so. I accept that submission. Mr Rudd made clear that he would not give the undertaking sought and that he would not advise what his recommendation to the CE would be, which he described as the detail of his recommendation. He did exactly as he had stated he would, by advising the Applicant's lawyers on 26 March 2025 that he had made a recommendation, without providing its detail. Mr Rudd was not evasive and did not otherwise fail to act fairly or reasonably towards the Applicant.
2. Moreover, the Show Cause Letter[171] invited the Applicant to "show due cause as to why a recommendation should not be made to the Chief Executive for the termination of your employment on the grounds of misconduct and breaches of the NSW Health Code of Conduct." That invitation arose from substantiated findings concerning the Applicant's conduct, which were said to raise significant concerns, to fall well below the conduct expected of a senior staff member of the Sydney Local Health District, to pose significant risk to staff and to the District because of a failure to exercise a duty of care diligently in undertaking his role as a Staff Specialist and Director of Diabetes, and to involve the making of vexatious allegations and significant breaches of policy. Foreshadowing a recommendation to dismiss following findings of misconduct, as reflected in the Show Cause Letter, is either a threat of dismissal or it is not, a matter on which I express no opinion.
3. Nothing had changed since the issuing of the Show Cause Letter, and certainly not after the advice on 24 March 2025 that the findings of misconduct had been affirmed upon review. It is difficult to understand why, in the letter from the Applicant's lawyers on 27 March 2025 sent at 12.05 pm, it was said that instructions would be sought to commence proceedings after 3 pm that day, given that nothing material had changed in the circumstances described in the letter. It is also not clear why the Applicant's lawyers considered it open to commence proceedings after 3 pm that day, in the absence of any indication of the recommendation from Mr Rudd to Ms Willcox, but not before.
4. I do not accept that the Respondent's conduct towards the Applicant in the period after 31 January 2025 and up to his dismissal on 27 March 2025 deprived the Applicant of any opportunity that was otherwise available to him. The Respondent's conduct during that period did not cause him to suffer any injury, hardship or loss, nor did it subject him to harsh or unfair treatment in, or in relation to, his employment. The Applicant suffered no detriment.
5. In any event, Mr Rudd explained why he made his recommendation to dismiss the Applicant to Ms Willcox.[172] He says he gave the Applicant's response to the Show Cause Letter careful consideration in making his recommendation,[173] and provided sound, logical and credible explanations for why he made that recommendation (and why he did not make some alternative recommendation).[174] That included, having set out his evidence as to the correspondence between himself and the Applicant's lawyers referred to above, the following (at [68]):[175]

"From Dr Suryawanshi's solicitors' correspondence, I understood that Dr Suryawanshi proposed to participate in proceedings under IR Act including under s 84 of the IR Act in respect of a recommendation of dismissal or an application for interim, interlocutory or final order under s 89(7) of the IR Act in respect of a threatened dismissal. Dr Suryawanshi's proposal to participate in proceedings did not form part of the reason for my decisions to:

(a) not to advise Dr Suryawanshi's solicitors of the detail of my recommendation;

or

(b) recommend the termination of Dr Suryawanshi's employment"

1. Mr Rudd's evidence was not undermined in any material way by cross‑examination. His explanation of why he made the recommendation to Ms Willcox, having regard to the findings made and the substance of the Applicant's response to the Show Cause Letter, was logical, rational and internally consistent. His oral evidence was consistent and considered. I formed the view that he was genuinely attempting to give frank and truthful evidence. I accept that he was truthful in stating his reasons for recommending dismissal as the appropriate outcome to Ms Willcox, and in denying that the Applicant's claim or proposal to initiate proceedings under Part 6 of Chapter 2 of the IR Act formed any part of his reasons either for making that recommendation or for not advising the Applicant's lawyers of the detail of his recommendation when it was made.
2. I am comfortably satisfied that any claim by the Applicant for a benefit under the IR Act, or his proposal to commence and participate in proceedings under Part 6 of Chapter 2 of the IR Act, was not a substantial and operative reason for Mr Rudd making the recommendation to dismiss the Applicant, or for not advising the Applicant of the substance of that recommendation to Ms Willcox when it was made. I find that the Applicant was not victimised.
3. Accordingly, Detriment 1 is not established and the presumption in s 210(2) does not arise in respect of that asserted detriment.
4. As the presumption in s 210(2) is engaged only in respect of Detriment 2, I turn to whether the Respondent has rebutted that presumption.

1. The ultimate decision-maker on whether to accept Mr Rudd's recommendation to dismiss was, as noted earlier in these reasons, the CE, Ms Willcox.
2. The evidence demonstrates that decision by Ms Willcox:

(1) Was informed by a brief created by Mr Rudd.[176] Ms Willcox confirmed in evidence she received the brief from Mr Rudd on 26 March 2025;[177]

(2) Was made during a meeting between Mr Rudd and Ms Willcox at about 10am, on 27 March 2025 (initially scheduled to deal with another matter about someone else),[178] at which they "discussed the Brief";[179] and

(3) The Letter of Termination was signed by Ms Willcox at the meeting on 27 March 2025.[180] At 11.35am Mr Rudd emailed a copy of the signed Termination Letter to Ms Chea (Workforce Manager, CRGH, SLHD) for service on the Applicant.[181]

1. Ms Willcox gave evidence, based on the brief she was supplied,[182] that she understood:

(1) the findings of fact made against Dr Suryawanshi substantiated allegations of misconduct;

(2) that the behaviour had occurred over a significant period of time;

(3) the behaviour occurred against multiple members of staff;

(4) Mr Rudd's had assessed the misconduct as serious and involving serious breaches of the Code of Conduct; and

(5) Mr Rudd had recommended Dr Suryawanshi's employment be terminated on the basis of misconduct and breaches of the NSW Health Code of Conduct.

1. Ms Willcox said she was satisfied the process followed with respect to the Applicant was "in accordance with NSW Health's policy",[183] and that she exercised her discretion to terminate the Applicant's employment based on advice, her experience, and the material before her.[184] As to her reasons for dismissing the Applicant, Ms Willcox gave the following evidence:[185]

"In considering the proposed termination, I had regard to:

(a) The contents of the brief, including Mr Rudd's assessment in respect of the conduct, NSW Health policy, and his recommendation for termination.

(b) The health, safety, and wellbeing of NSW Health staff, in particular the CRGH staff working in the Endocrine Unit.

(c) The stress, intimidation and anxiety, and feeling of being unsupported in the work environment by staff members, and how that impacts on the quality-of-care staff will provide to patients. If staff feel intimidated and afraid to voice their opinions, it will impact their ability to make decisions and empathically care for patients.

(d) My obligations pursuant to the HS Act and the WHS Act to provide a safe working environment to all staff. The behaviours of Dr Suryawanshi were not consistent with the Code of Conduct and, in my view, posed an ongoing risk to the psychosocial wellbeing of the staff in the Diabetes Unit.

(e) The seriousness of the conduct, including the potential for further harm or injury to staff and Dr Suryawanshi's pattern of behaviour.

(f) Dr Suryawanshi's length of service within SLHD.

(g) The impact on his professional reputation and personal circumstances.

(h) Dr Suryawanshi's written reply to the proposal to terminate his employment.

I took into account that Dr Suryawanshi had engaged in conduct that was substantiated in the investigation report over a significant period which caused stress, intimidation and anxiety to DNE nurses in the department which negatively impacted optimal patient care and was inconsistent with the provision of a safe workplace as required under the WHS Act. I considered that Dr Suryawanshi's conduct was not consistent with the Code of Conduct and posed and ongoing risk to the psychosocial wellbeing of the staff in the Diabetes Unit."

1. Ms Willcox expressly denied that the letters from the Applicant's solicitors foreshadowing the commencement of proceedings in the Commission, or the intention of the Applicant to seek relief in respect of an unfair dismissal (or threatened dismissal) under the IR Act played any part in her decision to terminate the Applicant's employment:[186]

"It played no part in my decision that Dr Suryawanshi's solicitors advised that Dr Suryawanshi proposed to make an application under s 84 in respect of a recommendation of dismissal or proposed to seek an interim order, an interlocutory order and a final order under s 89(7) not to dismiss Dr Suryawanshi".

1. I accept Ms Willcox's evidence. Her evidence, both written and oral, was logical, rational, credible and internally consistent, and was supported by the contemporaneous records.
2. Having regard to the evidence as a whole, I am satisfied that the Applicant's claim for a benefit under the IR Act, or his proposal to commence or participate in proceedings under that Act, was not a substantial and operative reason for Ms Willcox's decision to dismiss the Applicant. The Applicant was not victimised.
3. For these reasons, the Victimisation Application is dismissed.

Application for Non‑Disclosure Orders under s 164A of IR Act 1996

1. This part of the decision concerns the Respondent's Notice of Motion filed on 30 June 2025 seeking non‑disclosure and access orders pursuant to s 164A of the IR Act_._ The Motion sought orders relating to the identification of patients and complainant witnesses, and the publication of material arising from these proceedings.
2. Directions were made for the filing of the Motion, evidence and submissions. The Motion was first listed for hearing on 2 July 2025.
3. When the Motion came before the Commission on that date, together with an unrelated interlocutory application, Orders 1 to 3 were made by consent. I was satisfied that those orders were necessary in the interests of justice. Those orders included restrictions directed to the identification of patients referred to in the evidence generally. Orders 4 to 6 were opposed by the Applicant and were stood over for determination.
4. Also on 2 July 2025, Order 3 was made restricting access to the Commission's file, pending consultation by the Industrial Relations Registrar with the parties in the event that a third‑party access request was received.
5. On 24 July 2025, I made interim non‑disclosure orders in respect of the contested aspects of the Motion. Those interim orders included:

(a) interim Orders 4 to 6 of the Motion;

(b) orders prohibiting the disclosure or publication of material identifying, or capable of identifying, the complainant witnesses; and

(c) a direction that the complainant witnesses be referred to by the pseudonyms SL, AZ and MT in all written material.

1. The interim orders were expressed to remain in force unless varied or revoked.
2. Following the making of the interim orders on 24 July 2025, the Respondent was directed to identify the paragraphs of the complainants' witness statements relied upon in support of the Motion. That material was subsequently filed. Further affidavit evidence and submissions were also lodged, and the contested aspects of the Motion were then determined on the basis of that material.

1. Section 164A permits the Commission to make a non‑disclosure order where it is satisfied that it is necessary in the interests of justice. The section empowers the Commission to restrict the disclosure or publication of identifying information, evidence or documents filed with, or received by, the Commission.
2. The governing principles were considered by the Full Bench in Secretary of the Department of Education v X [2023] NSWIRComm 1061. It is well established that embarrassment, reputational harm or distress alone is insufficient to justify the making of an order under s 164A.
3. The Commission also had regard to decisions applying analogous non‑publication regimes, including Pentiah v Sydney Trains [2022] FWC 2479 and Santos WA Energy Ltd v Whittaker [2024] FWCFB 231.
4. In Crown Employees (NSW Police Force Special Constables) (Security) Award 2023 [2024] NSWIRComm 1034 at [275] and [281], the Full Bench confirmed that the Commission may inform itself in any manner it considers just and is not bound by the rules of evidence when determining an application under s 164A.
5. The Applicant opposed the contested orders, submitting that the evidence relied upon by the Respondent was insufficient to justify further non‑disclosure orders and that the Commission could not be satisfied that the orders sought were necessary in the interests of justice. The Respondent relied on its oral submissions and the documentary material filed in support of the Motion.
6. Having considered the parties' submissions, the evidence, the applicable principles and the relevant authorities, I am satisfied that it is necessary in the interests of justice to make final non‑disclosure and access orders protecting the identities of the complainant witnesses and regulating access to, and publication of, material that may identify them. The complainant witnesses are not parties to the proceedings and have provided sensitive and personal information. The orders made strike an appropriate balance between the protection of those interests and the principle of open justice, and do not prejudice the Applicant's ability to prosecute or defend the substantive proceedings

(1) The application under s 84 of the Industrial Relations Act 1996 (NSW) is dismissed.

(2) The application under s 213 of the Industrial Relations Act 1996 (NSW) is dismissed.

(3) Pursuant to s 164A(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission prohibits the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any patient referred to in the evidence in these proceedings, or any relative or family member of such a patient.

(4) In all written submissions, transcripts, reasons for decision or other publications arising from these proceedings, the complainant witnesses are to be referred to only by the following pseudonyms:

(a) SL

(b) AZ

(c) MT.

(5) Pursuant to s 164A(1)(c) of the Industrial Relations Act 1996 (NSW), the Commission prohibits the publication of any evidence, submissions, documents, transcripts or reasons for decision that identify, or may lead to the identification of, the complainant witnesses SL, AZ or MT.

(6) Access to the Commission's file in proceedings 2025/0126690 and 2025/127441 is restricted such that, if a person other than the parties seeks access, the Industrial Registrar is to consult the parties before determining whether access is to be granted.

(7) Access to Schedules A and B is restricted to the parties to the proceedings and their legal representatives.

(8) Orders (3) to (7) are made on a final basis pursuant to s 164A of the Industrial Relations Act 1996 (NSW) and are to remain in force for a period of 30 years, unless earlier varied or rescinded by the Commission.

Note: For the purposes of these orders, Schedules A and B are attached to these Reasons but are not published.

08 April 2026 - 08/04/2026 - Order 6 amended pursuant to r 9.4 of the Industrial Relations Commission Rules 2022 to amend matter number 2025/1126690 to 2025/126690.

13 April 2026 - 13/04/2026 - Catchwords amended to correct the number of allegations.

[1] Applicant, 'Applicant's Outline of Submissions', Submission in Suryawanshi v Health Secretary in respect of the Sydney Local Health District, 2025/00127411 & 2025/00126690, 16 May 2025 at [4(g)]. ('AOS 16 May 2025')

[4] AZ Statement CB 3406 at [34]; Investigation Transcript CB 3433.

[5] MT Statement CB 3257 at [33]; Investigation Transcript CB 3286.

[6] MT Statement CB 3256 at [29(b)]; 3267 at [32]; Investigation Transcript CB 3283.

[7] AZ Statement CB 3406 at [30]; Investigation Transcript CB 3432, 3495.

[12] SL Statement CB 2503 at [34]; Investigation Transcript CB 2536-2538; Tcpt, 28 July 2025, p 420 (32).

[13] SL Statement CB 2503 at [34]; Investigation Transcript CB 2536-2538.

[17] Investigation Transcript CB 3436, 3497, 3288, 3346.

[18] Suryawanshi Statement 1 CB 122-123 at [135]-[136].

[19] Suryawanshi Statement 1 CB 123 at [137]-[138].

[20] Suryawanshi Statement 1 CB 122-123 at [135].

[21] Suryawanshi Statement 1 CB 122 at [132].

[23] Suryawanshi Statement 1 CB 123 at [147].

[24] Suryawanshi Statement 1 CB 124 at [155]-[156].

[25] Suryawanshi Statement 1 CB 124 at [156].

[26] Suryawanshi Statement 1 CB 124 at [156].

[27] Tcpt, 28 July 2025, p 384 (36)-(37).

[31] Exhibit R2; Tcpt, 22 July 2025, p 102 (20).

[36] Tcpt, 22 July 2025, p 98 (23)-(25).

[37] Tcpt, 22 July 2025, p 99 (13)-(15).

[38] Tcpt, 28 July 2025, p 413 (46) - p 414 (2).

[39] Tcpt, 28 July 2025, p 415 (25)-(30).

[46] Tcpt, 28 July 2025, p 396 (10), (13), (16)-(17).

[48] SL Statement CB 2508 [79]; Tcpt, 28 July 2025, p 396 (25)-(26).

[51] Tcpt, 29 July 2025, p 516 (21)-(22).

[52] Tcpt, 29 July 2025, p 517 (44) - p 518 (1).

[53] Tcpt, 29 July 2025, p 518 (3)-(4).

[54] CB 562; Tcpt, 29 July 2025, p 523 (13)-(15).

[56] AZ Statement CB 3409 at [54]; MT Statement CB 3260 at [57].

[61] Tcpt, 29 July 2025, p 490 (20)-(26).

[63] Tcpt, 28 July 2025, p 392 (44)-(45).

[64] Tcpt, 28 July 2025, p 392 (44)-(45).

[65] SL Statement CB 2513 at [116]; Investigation Transcript CB 2580.

[66] Investigation Transcript CB 3298, 3445.

[67] See for example, Wong Statement CB 68 at [5]-[12].

[71] Suryawanshi Statement 1 CB 132 at [235].

[73] MT Statement CB 3261 at [61(a)]; Investigation Transcript CB 3304.

[74] AZ Statement CB 3410 at [62]; Investigation Transcript CB 3507.

[77] MT Statement CB 3261 at [61(a)]; Investigation Transcript CB 3304.

[79] AZ Statement CB 3410 at [62]; Investigation Transcript CB 3507.

[81] MT Statement CB 3261 at [61(a)]; Investigation Transcript CB 3305.

[82] AZ Statement CB 3410 at [64]; Investigation Transcript CB 3448.

[83] Investigation Transcript CB 2581, 2589.

[85] Suryawanshi Statement 1 CB 135 at [254]-[255].

[86] MT Statement CB 3261 at [62]; Investigation Transcript CB 3310.

[89] Suryawanshi Statement 1 CB 136 at [266(c)].

[94] Suryawanshi Statement 1 CB 137 at [280].

[95] SL Statement CB 2514 at [123]; Investigation Transcript CB 2619-2621.

[96] Suryawanshi Statement 1 CB 132 at [249(f)].

[99] Stommer Statement CB 815 at [31]; Tcpt, 29 July 2025, p 548 (38).

[100] SL Statement CB 2514 at [125]-[127].

[103] Suryawanshi Statement [1845] EngR 385; 1 CB 139 at [298].

[105] Suryawanshi Statement 1 CB 141 at [315].

[108] AZ Statement CB 3406 at [34], [36].

[109] MT Statement CB 3257 at [33], [35].

[110] Suryawanshi Statement 1 CB 142 at [328]; Tcpt, 25 July 2025, p 195 (45)-(50) - p 196 (1)-(2).

[112] MT Statement CB 3257 at [35]-[36].

[117] MT Statement CB 3266 at [91]; AZ Statement CB 3407 at [43].

[118] Suryawanshi Statement 1 CB 142 at [336]-[337].

[124] Tcpt, 25 July 2025, p 348 (46)-(50) - p 349 (1)-(6).

[130] Morris Statement CB 3778 at [17(b)ii].

[137] AZ Statement CB 3404 at [22(b)].

[139] AZ Statement CB 3404 at [22(b)].

[141] MT Statement CB 3261-3262 at [66].

[142] AZ Statement CB 3414 [87]; CB 3545-3547.

[144] Tcpt, 30 July 2025, p 584 (45)-(49); CB 2453.

[145] Suryawanshi Statement 2 CB 4068-4069 at [235].

[146] Suryawanshi Statement 1 CB 149 at [404].

[147] Suryawanshi Statement 1 CB 150 at [416].

[149] See for example CB 44; AOS 16 May 2025 at [15]-[17]; CB 807; Respondent, 'Respondent's Outline of Submissions', Submission in Suryawanshi v Health Secretary in respect of the Sydney Local Health District, 2025/00127411 & 2025/00126690, 2 July 2025 at [46]-[47] ('ROS 2 July 2025').

[150] See CB 809; ROS 2 July 2025 at [50] referring to ROS 2 July 2025 at [7]-[12]; Respondent, 'Updated Respondent's Closing Submissions', Submission in Suryawanshi v Health Secretary in respect of the Sydney Local Health District, 2025/00127411 & 2025/00126690, 30 September 2025 at [149] ('URCS 30 September 2025).

[151] URCS 30 September 2025 [149]-[152]; CB 809, ROS 2 July 2025 at [49].

[153] CB 39; AOS 16 May 2025 at [4(l)].

[154] CB 45; AOS 16 May 2025 at [24].

[155] CB 45; AOS 16 May 2025 at [23].

[156] Applicant, 'Applicant's Final Submissions', Submission in Suryawanshi v Health Secretary in respect of the Sydney Local Health District, 2025/00127411 & 2025/00126690, 29 August 2025 at [85]-[86] ('AFS 29 August 2025').

[157] AFS 29 August 2025 at [85(d)].

[158] CB 1821, part 8.3.

[161] For example, Tcpt, 1 August 2025, p 705 (20)-(22); AFS 29 August 2025 at [84(d)].

[164] CB 782 (noting Mr Morris had advised Mr Rudd of his position on 20 March 2025: CB 1786 at [45]-[46]; CB 3779 at [19], MM06); CB 2373, NR11.

[166] Tcpt, 1 August 2025, p 705 (14)-(42).

[167] CB 45, AOS 16 May 2025 at [24].

[172] CB 1786-1788 at [46]-[52], and [68].

[174] For the reasons outlined at CB 1787 [47]-[54]. .

[180] CB 1789 at [55]; CB995 [26], CB1767.