Dharmalingham v Western NSW Local Health District

[2015] NSWCATAD 74

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74
Hearing dates:	18, 19, 20 February 2014 and 21, 22 August 2014
Decision date:	15 April 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Conley, Senior Member, J Schwager, General member, M Nasir, General Member
Decision:	The applicant’s complaint of discrimination on the grounds of race in respect of the native language complaint is substantiated. The applicant’s complaint of discrimination on the ground of race is otherwise not substantiated. The applicant’s complaint of discrimination on the grounds of carer’s responsibilities is not substantiated. The applicant’s complaint of discrimination on the ground of disability is not substantiated.
Catchwords:	Discrimination, allegation of direct discrimination on the ground of race, disability, responsibilities as a carer, victimisation
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013
Cases Cited:	Wollongong City Council v Bonella [2002] NSWADTAP 26. Sivananthan v Commissioner of Police, NSW Police Service NSWADT 44 O’Callaghan v Loder [1983] 3 NSWLR 89 (1984) EOC 92-023 Purvis v Sate of New South Wales [2003] HCA 62 (Purvis) Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Qantas Airways v Gama [2008] FCAFC 69 Burns v Laws (EOD) [2008] NSWADTAP 3; Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27 Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 (15 December 2005) Awad v Western Sydney Local Health District [2013] NSWADT 287 (13 December 2013) Department of Health v Arumugan (1988) VR 319 Fenwick v Beveridge Building Products (1986) EOC 92 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Nicholls v Nicholls v Director General, Department of Education and Training (No2) [2009] NSWADTAP 20 Jones v Trad [2013] NSW CA 389 at 98.
Category:	Principal judgment
Parties:	Thennarasu Dharmalingham (Applicant) Western NSW Local Health District (Respondent)
Representation:	Counsel: A Singh (Applicant) J Kearney (Respondent) Solicitors: McIntosh McPhillamy & Co. (Respondent)
File Number(s):	121137

Judgment

Background

1. Thennarasu Dharmalingham (the applicant) was employed as the Director of Pharmacy at Bathurst Base Hospital. He commenced employment in this position on 18 January 2010. The Hospital is under the responsibility of the Western NSW Local Health District (the respondent). He was born in India and is of Indian racial background with a dark skin complexion. Tamil is the applicant’s first language. He claims that he had a disability in the form of a diagnosed psychiatric condition.

2. The respondent placed the applicant on “Special Leave” with full pay 15 March 2013. His employment was subsequently terminated.

3. The applicant alleges that the respondent discriminated against him on the grounds of his race, disability and carer’s responsibilities in the area of employment. He also alleges that he was victimised for bringing proceedings under the Anti-Discrimination Act 1977 (the ADA).

4. The applicant and the staff of the respondent have previously been involved in numerous workplace complaints, grievance procedures and three separate formal workplace investigations.

Procedure

5. This matter came before the Tribunal for hearing over five days. Affidavits of evidence were relied upon by the applicant and the respondent, which were adopted and admitted into evidence. Oral evidence was given by the applicant's and respondent's witnesses and documentary evidence also relied upon. At the conclusion of the hearing the parties sought to file written submissions. Leave was granted for the filing of submissions with a time-table set. The time-table was not complied with and final submissions were received on 22 November 2014

6. This matter was initially filed in the former Administrative Decisions Tribunal. The hearing was concluded on 22 August 2014 with final submissions filed on 22 November 2014. On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal, Civil and Administrative Tribunal Act 2013, Schedule 3, cl 3(1). In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, this application was a "part heard" proceeding.

7. The Tribunal heard evidence over 5 days from 7 witnesses whose Affidavits were adopted into evidence. There was additionally a significant amount of documentary material before the Tribunal. The Tribunal notes that in addition to the evidence, the written submissions from the parties (which were in parts in abbreviated form) totalled 184 pages. The Tribunal has therefore not referred all the material in this decision, the Tribunal has however had regard to all the material before us including the oral and documentary evidence and the written submissions.

8. The President of the Anti-Discrimination Board (The President) referred the applicant’s complaint to the ADT. The applicant was subsequently granted leave to amend the scope of the complaint. He then sought to amend the scope of the complaint by filing a further amended complaint just prior to the commencement of the hearing, but it was not served on the respondent. At the commencement of the hearing the respondent was notified of the further amendments sought. By consent, leave was granted for a further limited amendment of the complaint to include a complaint of discrimination on the ground of disability on 12 February 2013, which was confined to that day only. The scope of the applicant’s complaint (which is the matters referred by the President and matters where leave was granted to amend the scope of the complaint before the Tribunal) is therefore as follows:

The Allegations of discrimination on the grounds of race

March 2010 - comment that the applicant was “looking pale”.

April 2010 – comments relating to the applicant’s accent “product familiarisation program” and asking if applicant spoke Tamil at home

March 2011 - threatening voice message.

September 2011 - comment relating to applicant’s language skills (fire evacuation incident).

Incident involving daughter in pharmacy.

January 2012 - staff uniforms incident

January 2012 - complaint about applicant speaking native language.

November 2011 – “Smirking” Incident

Allegation of discrimination on the grounds of carer responsibilities

Daughter in pharmacy incident

Discrimination on the grounds of disability

Incident on 12 February 2013

Allegation of victimisation

Decision to place the applicant on leave on 15 March 2013.

9. Thennarasu Dharmalingham will be referred to as the applicant and Western NSW Local Health District, the respondent employer, will be referred to as the respondent. All witnesses will be referred to by surname only, with the exception of David Wright. He will be referred to by his full name. The reason for doing so is to avoid confusion. This is because MacRae’s maiden name was Wright. While the respondent has referred to her only as MacRae, in the applicant’s material and submissions she is frequently referred to as Wright.

The Applicant’s Evidence

10. The applicant was born in India and is of Indian racial background. He states that skin complexion of persons of Indian ethnicity varies from very dark to very fair. In Indian culture, persons with dark skin are generally looked down upon and come from a lower socioeconomic background and are often ridiculed because of their complexion. He states that he has personally experienced comments about his skin complexion in the past. He finds such comments offensive, hurtful and demeaning. He states that Tamil is his first language which was the language he used throughout his schooling. He studied English as a language subject.

11. On 18 January 2010, he commenced employment in the pharmacy department of Bathurst Hospital as Director of Pharmacy. At the time, he commenced employment at Bathurst Hospital. The following persons worked in the department, Suzanne McRae nee Wright, Pharmacist ( MacRae), Brooke Barnes, Pharmacy Technician (Barnes), Rinelle Ledingham; Pharmacy Technician ( Ledingham), Julie Furner, Pharmacy Technician (Furner).

12. At the time the applicant commenced employment, his supervisor was the General Manager, David Wright (David Wright) The position of Director of Medical Services was vacant. In Aril 2010, Jo-Anne Karnaghan (Karnaghan) commenced employment as Director of Medical Services and became his immediate supervisor.

13. It was the applicant’s evidence which was undisputed that staff uniforms were regulated by the Greater Western Area Health Service Uniforms and Dress Code. At the time he commenced employment, he claims that the pharmacy staff were wearing an assortment of uniforms. It is compulsory for non-clinical staff to wear uniforms and they are paid a uniform allowance.

The “looking pale” incident – March 2010

14. In late March 2010, the applicant states that he had a headache and no other ailment. He was at work and had a conversation with Ledingham in the presence of Furner. He said that he was not feeling well. Ledingham responded by saying, “You are looking pale”. He then stated, “Don’t be funny, my colour is black, I can’t look pale”. He states that he felt very upset by Ledingham’s comment. After the conversation, he took some Panadol and continued to work through to the end of the day. The following day Furner was having a conversation with Barnes while he was present at work. During the conversation and in his presence, Furner said words to the effect, “Yesterday Rinelle told Thens that he was looking pale to which he responded, “Don’t be funny, I’m black, I can’t look pale”. Barnes then started laughing. His evidence is that he felt very upset by this conduct.

Product familiarisation program incident - 7 April 2010

15. The applicant’s evidence is that on 7 April 2010, he was at the pharmacy dispensary with MacRae and Ledingham. He had a conversation about practices for dispensing certain medications. During the conversation he said words to the effect: “For Zemplar and Glivec, future dispensing is to be done under product familiarisation program and not as hospital funded”. He claims as soon as he said the words “product familiarisation program”, MacRae and Ledingham both laughed and giggled. Ledingham said whilst still laughing, “Can you repeat that?” He repeated the phrase. He claimed that while laughing MacRae repeated the words trying to imitate his accent. Ledingham giggled and said she could not understand what was said because he was talking too fast. He told her to ask him to repeat if she did not understand.

16. Ledingham then asked him what language he spoke at home and asked if he spoke Tamil to his wife and daughter. That’s the reason it’s difficult to understand you”. He states that he was very upset by this incident. The next day he had a conversation with Ledingham in the dispensary during which he told her that he was very upset about the comments she had made and also about the comments when she said that he was “looking pale”. He told her that they were not appropriate and were discriminatory and to be mindful of her expression.

17. On 9 April 2010, he held an informal meeting with pharmacy staff. Barnes was not at work on that date. During the meeting, told staff to follow the Code of Conduct and not to upset anyone in the workplace. Ledingham said that she did not mean to upset him when she said he looked pale. He stated that he was upset with comments made by staff about calling me pale and product familiarisation program. MacRae laughed and said she had never heard of this program. He responded stating, “See this is what is called discrimination”. He said he was very upset by this comment.

Threatening Telephone message – 4 March 2011

18. The applicant states that in approximately March 2010, he gave MacRae his mobile telephone number and also his home telephone number. He advised her that any staff member could contact him on those numbers if necessary. He saw MacRae write those numbers down on a sheet of paper. His evidence is that shortly afterwards he observed that a sheet of paper was on the notice board inside the dispensary room of the hospital which had staff contacts on it. It had been amended to include his telephone numbers. He states that the only other person in Bathurst to whom he gave his then mobile number up to March 2011 was his wife.

19. During the week leading up to 4 March 2011 he had a number of discussions with MacRae about issues including mobile phone usage He observed that she was angry and argumentative. He also states that during that same week he had to deal with Ledingham in relating to approval for secondary employment. On Friday, 4 March 2011, there was a voice message on his mobile phone. The caller stated, “You curry muncher. Fuck off back to India”. His evidence was that he felt really scared and upset after listening to the message. A short time later he went to Bathurst Police Station and made a complaint about the message. On Monday, 7 March 2011, he played the message to Furner and Barnes at work.

Fire evacuation incident – 16 September 2011

20. During the September 2011 school holidays on about 16 September 2011, the applicant brought his daughter, Preethi, to work with him. She sat in the interview room in the pharmacy reception waiting area. Furner and MacRae were on leave that day. Around mid morning, the fire alarm went off. The applicant requested staff to evacuate the building. He then went and got Preethi. Barnes, Ledingham, the applicant and Preethi all walked over to the fire assembly evacuation point. They waited outside for a time until it was clear to go back into the building. The applicant advised the others stating words to the effect, “We are okay to clear into pharmacy”. He was a short distance away from them. He heard Ledingham say to Barnes, “Thens needs to speak better language and learn how to speak English”. He saw Barnes giggle and laugh and Ledingham also giggled and laughed. As they were returning to the pharmacy, Ledingham and Barnes were walking ahead of the applicant and Preethi. Preethi said words to the effect, “Why did Rinelle say you have to learn better language and learn how to speak English? Why are they giggling and laughing dad?” He advised her to ignore it. He stated that he felt very humiliated by the comment especially when made in front of his daughter. A few days later he told Ledingham that he had been very upset by the comment.

Complaint about daughter in pharmacy – 27 September 2011

21. The applicant stated that shortly after he commenced work at Bathurst Hospital he advised David Wright that he had an 8 year old daughter and his wife was studying at Orange. He said that he would need to bring her to work in the mornings, until she catches the school bus. She would also sometimes need to come to work during the school holidays. David Wright advised that this was okay. In approximately April 2010 at a staff meeting, he told the staff of the approval from David Wright. On 27 September 2011, his daughter Preethi came to work with him and was in the pharmacy reception waiting area for about 20 minutes before she went to school.

22. On that day he received a phone call from Glenda Entwistle (Entwistle), the Director of Nursing. She advised him that she had received a complaint from a staff member about his daughter coming into the pharmacy. She wanted to make sure that his daughter was not entering the pharmacy area. He advised her that he had approval from his manager to bring his daughter to work and advised that she was in the waiting area and does not enter the pharmacy. He said that at no time had she entered the pharmacy. He said that the complaint was false and he felt very upset by the complaint.

23. The applicant’s evidence was that at this time, his supervisor was Karnaghan, Director of Medical Services, who reported to David Wright, the General Manager. Entwistle had no supervisory role over his or the pharmacy department.

24. Later that day he had a conversation with Barnes and Ledingham during which he advised them that he had approval to bring his daughter to work and said if anyone had a problem with that to let him know. Ledingham expressed a concern and they went into his office to discuss it. She said that they are all paying child care fees and he was not. He advised her that if she had any special requests for bringing in children, then please let him know and he would approve. Subsequently, he had a conversation with Karnaghan during which she said that several other staff members were bringing their kids to work and she approved him bringing his daughter to work when he needed to.

The smirking incident

25. On 17 November 2011, a spotless technician, Alison Copson (Copson), was in the dispensary checking the drug fridge. She has a hearing problem and talks very loudly. The applicant claimed that she was very difficult to deal with. The applicant was having a conversation with her about the location of the drug fridge manual during which she said very loudly: “You are manager here Thens. You don’t know anything here. Can you find it?” He said that during this conversation he saw Ledingham and Wright looking at each other and they were both smirking. Copson made some negative comment directed towards him and Ledingham and Wright exchanged smirks. He says that he was upset by the conduct of Ledingham and Wright and sent an email to Karnaghan about this issue on 18 November 2011.

The Uniform issue.

26. In approximately late 2010, the applicant had a conversation with Ledingham about her wearing three quarter pants at work. He said to her that he was not sure that three quarter pants were in the uniform catalogue and she responded that she had been wearing them since before he started. He indicated that he would check the uniform catalogue and advise her as to whether three quarter pants were allowed. He subsequently checked the dress code catalogue and confirmed that they were permitted under the uniform policy. On 25 November 2010, he sent an email to all staff confirming this.

27. In approximately February 2010, he received a copy of a statement from Karnaghan dated 18 January 2012 which stated that MacRae “and a couple of the technicians” had been to see her over the issue of the uniform that the applicant wanted them to wear. They stated that he did not want them to wear trousers or culottes and wanted them to wear skirts. She wrote: “I spoke to him about this matter and did not agree with him and I believe that this issue could be construed as sexual harassment”. He states that at no time had he requested or discussed with staff that they wear skirts. He was very upset and hurt about this false allegation. He raised the issue with Karnaghan who did not respond. He claimed that both Ledingham and Furner agreed that he did not ask them to wear a skirt. Barnes also indicated that there was no discussion about wearing skirts. He denied a conversation with Ledingham on 5 March about the issue as reported in the statement given to investigator, Annette Simpson.

Native language complaint

28. On or about 27 February 2012, the applicant received a letter from Tiffany Charlton (Charlton) about an external investigation. Attached was a letter from Barnes dated 24 January 2012. At page 5 of her letter, Barnes stated: “Thens speaks in front of myself and other staff members on the telephone in his native language. I find this to be very inappropriate and it makes me feel uncomfortable as I cannot understand what he is saying.”

28. His evidence was that he does receive calls from his wife on his work phone which he takes either on his office phone or on a phone in the dispensary and he does speak to his wife in the Tamil language. He states that he was very upset after reading the extract in Barnes’ letter.

The meeting of 12 February 2013

30. On Tuesday, 12 February 2013, the applicant observed that Barnes was wearing a purplish t-shirt. He approached her and said words to the effect: “Brooke, are you not wearing the uniform today?” She responded in a raised voice and said words to the effect that she had bee wearing the uniform for more than four years, “Is there a problem, Thens?” He responded that there was no problem, he just wanted to clarify. He then went back to his desk. At about 8:52 am he received an email from Barnes advising that she had a meeting with Charlton and would not be returning to work at the meeting. At about 9:50 am he went to David Wright’s office and had a conversation with him during which he informed him of the conversation with Barnes earlier that day. At about 10:15 am, David Wright attended a meeting of pharmacy staff in the dispensary. Present was the applicant, Derek Kay, (Kay) a Pharmacist, Furner, Barnes and Ledingham.

31. He claims Barnes said in a loud voice, “What’s wrong with my uniform Thens?” The applicant advised that he just wanted to clarify the uniform. She interrupted him and said, “I’ve been wearing this uniform for four years”. David Wright then indicated to both Barnes and the applicant that this issue should be discussed in private.

32. The applicant says that at the end of this meeting he felt nervous and anxious, went to his office for a short period to try and calm down. At about 11:05 am, he went to the interview room and saw David Wright and Barnes talking to each other. He sat down and had a conversation with D Wright and Barnes during which D Wright asked Barnes about her concern. She responded in an angry tone asking why the applicant had questioned her about a uniform that she had been wearing for more than four years. The applicant said that his hands were shaking and he moved forward in his chair and placed his hands on his knees to minimise the shaking.

33. He said to Barnes he just wanted to clarify with her that the uniform she was wearing was the one he had approved six months ago. He said that he asked, “Are you not wearing the uniform today Brooke?” He said there was no motivation behind the question or no intention to upset her and he was sorry, he just wanted to clarify it.

34. Barnes then raised the subject that the applicant had argued with Kay that morning. The applicant’s evidence was that he felt his “stomach churning” and found it difficult to say words he was wanting to say. His heart was pumping at a high rate and he felt stiff and hot. He felt deeply aggrieved that Barnes was raising an irrelevant and misleading allegation against him. He said to David Wright, “This is called making up the issues”. David Wright raised his hand towards him and told him to stop. He said that Barnes and he then both stopped talking and David Wright asked him, “Are you apologising to Brooke” and he apologised to Barnes. David Wright asked Barnes if she was okay to go back to the department and she said she was and subsequently left. He then had a further short conversation with David Wright. He stated that at the end of the meeting it was his understanding was that the issue had been resolved.

35. On Monday, 11 March he attended a mediation about his complaint in the ADT. He then attended work on 12, 13 and 14 March 2013. On Friday, 15 March 2013 he attended work and at approximately 3:00 pm was handed a letter prepared by David Wright. The letter advised of an allegation of workplace conduct. He referred to the meeting of 12 February 2013 when he was alerted to issues that were occurring within the pharmacy department regarding the uniform of Barnes that day. He met with the applicant and Barnes as a consequence and attempted to resolve the issue. He wrote that during the meeting he had observed several behaviours that were potentially in breach of the NSW Department of Health Code of Conduct. He also wrote about concerns about interactions with Kay and Furner which had been raised by Suzanne Bourke, Acting Nursing Unit Manager at the hospital. He advised that an investigation into those issues would be undertaken by Western LHD Workforce to investigate the allegations made. He also noted that while the investigation was occurring, the applicant would be placed on leave with full pay effective immediately from Friday, 15 March.

Medical Evidence

36. The applicant’s evidence was that he was admitted to the Emergency Department of Bathurst Base Hospital the evening of 15 March 2013. He provides copies of documents from the Area Health Service relating to his admission.

37. A Discharge Summary prepared by Dr Courtney McPhail Junior Medical Officer records that on 15 March 2013 the applicant presented with MH behavioural disturbance. Dr McPhail records the details of the history given and the presentation. He was diagnosed with Major Depression with situational crisis due to work related stressors. His diagnosis on discharge was Major Depression.

38. The applicant was seen by a Psychologist Ms Meagher in November 2011. On 4 January 2012 she diagnosed an Adjustment Disorder with Depressed and Anxious Mood. He provided Work cover Certificates and took time off in January 2013. He received counselling and was prescribed medications. The work place conflict was identified as needing to be resolved. The respondent arranged for him to see Dr Inglis Synott Psychiatrist on 7 February 2012 who also agreed that the workplace conflict needed to be resolved.

39. On 7 July 2012 the applicant saw a doctor in India who diagnosed emotional stress and anxiety. On 15 December 2012 the applicant saw Dr Chinnappa in India who diagnosed psychological and emotional problems. The applicant also relies upon a report from Dr Yuvarajen, psychiatrist, but he was not available to give evidence and was therefore unavailable for cross examination.

40. To address this the applicant replied upon a report from a consultant Clinical Psychologist, Mr Borenstein. Mr Borenstein was engaged to provide an expert report and was not a treating practitioner. Mr Borenstein refers to the material that he considered when preparing his report. Mr Borenstein told the Tribunal that he had regard to documents before him including the report of Dr Yuvarajen but undertook his own assessment of the applicant and formed his own opinion. He provided a history given by the applicant. He noted that the applicant’s mother lived in India and died in November 2013 after a three year battle with kidney disease resulting in hypertension and CVA which came as a relief to the family. He acknowledged that if some aspects of the history presented were incorrect this would cast doubt upon his conclusions. He noted that he had not been told about the second and third investigations into the applicant’s conduct.

41. Mr Borenstein acknowledged that if some aspects of the history presented were incorrect, this would cast doubt upon his conclusions. He noted that he may not have been told about the second and third investigations into the applicant’s conduct, but was unsure.

42. In his report Mr Borenstein concludes with respect to the meeting on 12 February 2013, the applicant was in the “throes of an acute exacerbation of his chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood”. He expressed the view that the applicant’s conduct and judgement during the meeting was negatively impacted by virtue of his acute symptoms of anxiety and depressed mood.

Respondent's evidence

MacRae

43. Suzanne MacRae (nee Wright and referred to as MacRae) gave evidence. MacRae is one of the two pharmacists employed in the pharmacy.

Product familiarisation program Incident

44. MacRae gave evidence that she recalled a conversation with Ledingham. Ledingham tried to say the words “product familiarisation program” but stumbled saying it. She laughed and said to Ledingham, “I’m laughing at you because I can’t say it properly either” and then added, “Thens says it so well”. She states that she never tried to imitate Thens’ accent. She states that she does not recall him saying that he was upset concerning the “product familiarisation program” or alleging that behaviour was discrimination. She did recall a discussion about discrimination in the context of signing the Code of Conduct.

45. MacRae acknowledged that she had not undertaken any training to deal with people from a non-English speaking background. When asked, she agreed that the applicant had a habit of interrupting her when speaking. She acknowledged that Ledingham had asked the applicant to repeat the phrase “product familiarisation program” and did not recall any conversation the following day. She denied laughing and she denied Ledingham laughing and she denied trying to repeat or imitate the applicant’s accent.

Threatening Telephone message

46. MacRae gave evidence that she recalled a list of staff contacts on the notice board. She also recalled that the telephone number of the applicant had been included. She states that the applicant kept his mobile phone on his desk in the pharmacy and answered calls regularly. She could not help but hear some of those calls were personal calls. The applicant said to her, “You are not to use your mobile phone during work hours except for an emergency”. She said that she did not recall being argumentative and she was certainly not angry when she sought clarification about asking him what he meant by an emergency.

47. She was asked about the incident which was said to have occurred on Friday, 3 March 2011. The applicant imposed restrictions on the use of mobile phones. Mobile phones were to be in lockers and could only be used in an emergency. MacRae acknowledged that she was required to seek permission to use her mobile phone and felt very humiliated and patronised by doing so. She acknowledged she was very upset by the incident.

48. She was asked about the use of the term “curry muncher”. She understood that it referred to someone of an Indian background. She agreed that the term would be racist and offensive. She acknowledged that the use of the term would be extremely derogatory. She said that she was not involved in the incident whereby such a message was left on the applicant’s phone.

Complaint about daughter in pharmacy

49. MacRae says that during school holidays the applicant’s daughter, Preethi, would sometimes stay in the pharmacy waiting area or in the office waiting area for most of the day. She recalled that he mentioned that Entwistle had called him and had received a complaint about his daughter, Preethi. He stated that he had approval and she responded that she knew he had but others had asked her about it. The reason she said this was because staff from other parts of the hospital had commented to her from time to time asking to why a child was waiting outside the pharmacy area.

50. She was asked about the applicant’s daughter coming into the pharmacy during school holidays. She said that it was her belief that his daughter never came into the dispensary. She acknowledged that she was present when the applicant received a call from Entwistle suggesting that somebody had contacted her about his daughter and she also acknowledged that it was untrue that the applicant’s daughter, Preethi, was in the dispensary. She denied that she made the call.

The smirking incident

51. MacRae stated that Copson is an extroverted personality and enjoys laughing and talking loudly. She said this may be due to her hearing impediment. MacRae denied that she was smirking with an intent to belittle or humiliate the applicant. When Copson made a joke, it is polite to smile and that is what she did.

General

52. MacRae’s evidence was that after the applicant arrived and commenced work, things went reasonably well for the first few months. She states that in about April 2010, the applicant started to change a lot of the systems that were in place and then frustratingly changed them back again. She stated that he appeared to become angry about small things and started micromanaging everyone in the pharmacy. She gave examples. The first example was when Barnes purchased some polo neck t-shirts. The applicant came to her and asked her if she had seen Barnes’ uniform and stated it was wrong. She claimed that he said that she looked like a pharmacist and people might think that she is a pharmacist. His reaction appeared to be out of proportion to the issue, since the v-neck shirt was in the NSW Health catalogue and appeared to be an acceptable uniform. The same shirt was worn by many other non-clinical staff throughout the hospital. The applicant continued to be upset about it.

53. She suggested that Barnes be reimbursed from petty cash as she had already paid for the t-shirts. The applicant then sent an email to David Wright. In that email, he claims MacRae that gave wrong directions and staff had paid for the uniforms. Consequently MacRae had requested that, due to her “misleading direction”, the staff member be reimbursed. He made a request for the reimbursement of the payment through petty cash. MacRae denied giving Barnes the wrong directions, but claims she made no comment at the time hoping the issue would “blow over”. She alleges that the applicant said to her, “We are pharmacists and we need to keep the others down or they will start playing games”.

54. She gave an example of another incident. When she returned from an overseas holiday, she was unwell with a gastric complaint. Although unwell, she came to work with the intention of telling the applicant personally and seeing how she felt at work. Before she reached the pharmacy, she ran into Jenny Davis (referred to as Davis), the Infection Control Officer at the Hospital. She asked MacRae some questions and then told her not to go into the pharmacy, but to go straight to emergency for treatment. Davis said that she would notify the applicant.

55. MacRae went to emergency and was treated for a gastric illness and did not return to work for several days. When she returned to work, she received an email from the applicant, requesting that she report in writing why she had not notified him that she was sick. He wrote that at around 12 o’clock, a Registered Nurse from the Emergency Department rang and informed him that she was in the Emergency Department and later a medical certificate was passed on to him from the Emergency Department. He asked why she could not have notified him earlier. He said he thought this was the second time this had happened with sick leave communication.

56. MacRae responded in writing via email communication that she had been directed by Davis not go into the Pharmacy Department. She said that she felt that she should follow the direction of the Infection Control Officer in a situation as it was likely that her illness was contagious and originated in Thailand. Upon arrival in the Emergency Department, she deteriorated and was not able to do anything, let alone make a phone call for several hours. She was placed in the isolation room while she stabilised. She tried to the get to the department on her discharge, however, collapsed in the doctor’s station after which she contacted the applicant. She says that she believed that Davis, the staff health nurse, had advised him about her situation. She noted that she thought a previous incident had been discussed at length and had been resolved.

57. MacRae’s evidence was that that in general discussion in the pharmacy afterwards, she became aware that the applicant knew what triage category she had been accorded when she attended the Emergency Department. She became suspicious and accessed her medical records to see if they had been accessed. She observed that the applicant had accessed her medical records without her permission. She reported this breach of privacy to Karnaghan, who is the Director of Medical Services. She claims that the applicant became more aggressive and controlling in his behaviour towards her from that time onwards.

58. Her evidence was that the applicant would often say inappropriate things to her in the workplace. She gave an example of one occasion where he said: “If you go to the gym for more than three months you will lose some weight”. On another occasion he said: “You baked a cake, but you are trying to lose weight but you baked a cake”. In response to those comments, she asked him not to discuss her weight in the workplace.

59. She acknowledged that she refused to sign the Code of Conduct when the applicant asked everyone to sign it. She said she signed it when she commenced employment. She acknowledged that by March 2011, her relationship was very bad with the applicant.

60. MacRae was asked about whether or not the applicant had ever asked her to wear skirts and she said that he had not. She was asked about a complaint letter she wrote about the applicant on 30 January 2012. She could not recall how long the complaint was but acknowledged that it was 11 pages. She was asked whether or not there were 46 issues she raised against the applicant and she said there were quite a lot of issues. She was asked whether or not any of the complaints were sustained and whether or not one finding was sustained and she could not recall but said that some were sustained but she did not have a copy of the letter.

61. The applicant referred to the statement of Karnaghan annexed to the President’s report. Karnaghan wrote that she had monitored the applicant in the workplace and found him to be an excellent pharmacist and a very diligent head of department. MacRae disagreed with this. MacRae conceded that when the applicant first commenced employment that she would be late three to four days per week. She agreed she would be up to five minutes late a few times per week. She was asked about the applicant trying to implement changes, she stated that he was always trying to implement changes. She said that she was often trying to clarify the changes which was seen to be resistive.

62. Karnaghan had supported the applicant making the changes in circumstances where MacRae had concerns that the changes were not necessary. Karnaghan wrote that her interpretation of her concerns is that she did not like change and did not want to be managed and came across as having a “princess complex”. She initially consistently emphasised that he was the head of department and it was his responsibility to run the department and if there were things she did not understand, she needed to ask him. MacRae disputed that she was “bucking” against the applicant’s authority. She acknowledged that, at times, she did become unprofessional. She acknowledged she and Ledingham smiled at Copson’s jokes. In relation to the racial background of the department, she said that the applicant’s behaviour was unacceptable. She denied that the applicant’s race was anything to do with her difficulties in the workplace.

Barnes

63. Brooke Barnes (Barnes) gave evidence that she had been employed as a Pharmacy Technician and since 2009, had been “job sharing” with Ledingham. They work five days a fortnight each.

The “looking pale” incident

64. She recalled having a conversation with the applicant when he called her into the office when there were only two of them present. He said, “There has been an incident. Rinelle said I was pale”. She denied laughing in response.

General

65. She gave evidence about an incident in September 2011 when MacRae returned from holidays. Her evidence was that she was at work on that day and the applicant said to her in an angry tone of voice, “Suzie is in the Emergency Department. I don’t see why she could not have told me that she was going there. She should have told me that she was not coming into work”. The applicant repeated similar statements throughout the morning. She enquired at lunchtime whether or not he had heard from MacRae. She enquired because the two of them work closely together on a Tuesday in the Rehab Ward. The applicant advised her that MacRae had been classified as a particular category which meant that she was not sick enough to be admitted to hospital. She said that she became suspicious about how the applicant knew the details of what had happened in the Emergency Department.

65. When MacRae returned to work, MacRae discovered that the applicant had access to her medical records. Barnes then became suspicious that he had accessed her medical records from other matters that he had said. So she checked her own medical records and was told that he had accessed her medical records when she had been admitted to hospital for a procedure 9 months earlier. He had accessed her medical records one week after she was discharged from hospital. Barnes immediately went to Karnaghan, the Director of Medical Services and the applicant’s supervisor, and made a complaint. There was a three month investigation in which she had to keep working with the applicant during that time and both complaints were heard to together. Both complaints were sustained. She did not know the details of the consequences. Her evidence was that the applicant’s attitude towards her changed after she made that complaint and he started to supervise her work very closely and “nit pick” with every aspect. He was often rude and would ignore her when she said “good morning” when she arrived at work.

Threatening Telephone message

67. Barnes states that the applicant gave her his mobile phone number and advised her that it was okay to ring him on the weekend if she was not going to be in on a Monday. She recalls the applicant ringing her over a weekend and asking if she tried to contact him and she advised it was not her. When she came into work on the Monday, the applicant apologised for ringing her on the weekend and said someone’s partner had tried to contact him and he did not want her to say anything to MacRae about it. Later in the day when MacRae was out of the pharmacy, the applicant played a message to herself and Furner and asked her what was said in the message. She said: “They called you a curry muncher”. He asked her what the term meant and she said that it was a racist reference to Indian people. Furner then said not to worry about it as someone had just dialled the wrong number and got his voicemail. The applicant questioned how they would know he was Indian and she told him that he did have an accent and Furner said that they would have heard his accent on the voice message.

Fire evacuation incident

68. Barnes did not recall Preethi being present, nor did not recall the conversation.

Complaint about daughter in pharmacy incident

69. Barnes recalled that the applicant spoke to Entwistle. He had said that it was ridiculous that someone had made a complaint and that Entwistle was not his boss. He said that he had approval to bring his daughter to work and asked if anyone there had a complaint. She heard Ledingham say: “I can understand how other people might perceive it”. The applicant said he would discuss it in his office. She observed Ledingham and Thens go into his office but did not know what was said.

The smirking incident

70. Barnes evidence was that she was not present on that day, but was familiar with Copson. She did not think that she was difficult to deal with, but she did speak loudly, possibly because she has a hearing impediment.

71. Barnes gave evidence about an incident involving a uniform. In March 2010, she ordered new uniforms from the non-clinical catalogue as she is one of the non-clinical staff. She had a choice of ordering a lilac polo shirt with navy piping or a navy polo shirt with lilac piping. She ordered the navy polo shirt, paid for it and it was delivered. The applicant advised her that she was not wearing the correct uniform. She said that she had ordered it from the non-clinical catalogue. He asked her to come into the office to discuss it and told her that she was wearing the wrong uniform, because he wore a navy blue polo shirt and anyone would think that she is a pharmacist. She advised him that she ordered the shirt from the non-clinical catalogue and if anyone thought she was a pharmacist she could correct them. She indicated that she wears a badge with her name and position on it so there can be no confusion. She also said that other people in the hospital wear navy blue polo shirts. The applicant advised her that she was not allowed to wear the navy blue. She said they came to an arrangement whereby the applicant purchased a couple of lilac polo shirts with blue piping. She included this particular incident in a formal grievance complaint she made against the applicant as an example of how he might micromanages people and tries to exert control.

Native language complaint

72. Barnes had made complaints against the applicant and he had made complaints against her. This was part of her complaint. She claimed that it was rude and inappropriate for him to speak on the telephone in her presence in another language.

The meeting of 12 February 2013

73. Barnes’ evidence was she had been off work for a couple of months on personal leave. She had returned to work only a few weeks prior to this date. On that day, she was wearing a lilac top which she had been wearing for years, before she went off on personal leave. She had been wearing the top fairly constantly since she had returned from personal leave. On this particular morning, she had just arrived at work when the applicant got up from his desk, walked over to her and said in a confronting tone, “Why are you not in uniform?” and she responded: “I am in uniform”. She showed the applicant the emblem from the manufacturer which was just inside the sleeve of the shirt. He shook his head and returned to his desk and she asked, “Is there a problem?” She indicated there was not. Barnes said that she was upset by the incident and she had only been back at work a short time and it appeared to her that the applicant would start “nit picking and controlling” in the workplace again. A meeting had been arranged a few weeks beforehand. She had asked for a meeting with Human Resources to find out the progress of a grievance complaint made by her prior to her return to work and this was the first opportunity to speak to them about it. The meeting was pre-arranged and not in response to the conversation of that morning. Her evidence was that, as far as she was aware, this was the first time that the General Manager of the hospital had attended a pharmacy department meeting. She said it was also unusual because Ledingham came into work on her day off.

74. Barnes states that David Wright said words to the effect, “Does anyone have any issues to discuss?” She responded by saying that there had been an issue that morning about her uniform. The applicant then started speaking and he raised his voice. She said she did not recall exactly what was said. She did recall David Wright saying words to the effect that it was not appropriate to discuss it at that time and they would have a private discussion after the meeting.

75. At the conclusion of the meeting she went into a separate meeting with David Wright and the applicant. She said that she disputed the applicant’s versions of events that he asked her whether or not she was in uniform. She said what was said to her was, “Why are you not in uniform?” He responded that he was her manager and entitled to ask and he thought she was in the “maternity uniform”. She asked why she would be in the maternity uniform and then said that she felt that he was just in a bad mood that day as he had had a go at her as soon as she walked in the door. She also said that he “had a go” at Kay as well. He responded by saying, “That is a lie, tell the truth”. At that stage of the meeting she became upset.

76. She claimed that the applicant was leaning forward in his chair and speaking at her without listening. He was talking over the top of her in an overly assertive manner. She said that she was intimidated and confused as to why a trivial uniform issue should be a matter of such importance and began to cry. The applicant kept talking despite her emotional upset. At that point, David Wright raised his hand towards the applicant and said, “Stop, that’s enough”. The applicant kept talking at her in the same manner and she continued to cry. She said that she did not recall the applicant apologising. She left the interview room and the applicant and David Wright continued for a further five minutes or so.

Ledingham

77. Rinelle Ledingham gave evidence. She was employed as a pharmacy technician at the pharmacy at Bathurst Base Hospital. She commenced the position in September 2008. She said it was not for her to comment as she was not a pharmacist herself, it was her opinion that the applicant was a very capable pharmacist. She acknowledged that she could and did raise any issues of concerns with the applicant. She was asked if she was ever frightened to speak her mind and she said that she was not. She also said that she had never made a complaint against the applicant.

78. Ledingham observed that when the applicant had been in the job about three months, that there was conflict in his relationship with MacRae. She observed that the applicant would pick on her and criticise her constantly over minor matters.

The “looking pale” incident

79. It was Ledingham’s evidence that she recalled the incident quite well. On that occasion, she observed that the applicant was looking unwell, his eyes looked dull and his movements lethargic. He was sneezing and coughing and she could hear that he had some congestion in his voice. She recalled that she said that he was not feeling well. She responded with the words, “Yeah you don’t look well, you look pale”. She stated that the words were said at that time to indicate that he looked unwell. She added the words, “You should take some medication and go home and rest”. Her evidence is that a couple of weeks later he came to her and said words to the effect that he is a black man, how could he look pale and she apologised and said that she made the comments because she was concerned about him.

80. In her affidavit she states that in relation to the “looking pale” incident that she said to the applicant if she offended him it was the last thing she wanted to do and she was not discriminating against him. She said that she apologised that he had taken it the way he had and it was not her intention. She states: “I was a bit upset because I had understood that we had developed a working relationship and resolved to be more mindful in the future”.

Product familiarisation program incident

81. Her evidence was that the applicant speaks with an accent and sometimes speaks to fast for her to understand. She recalled him saying the words “product familiarisation program” and that she struggled to understand those words, which are difficult even for a native English speaker. She did not understand what was said and laughed more out of embarrassment that she could not understand what her immediate supervisor was saying. She acknowledged that she asked the applicant to repeat the phrase but did not giggle at that time. She states that MacRae did not repeat the words imitating the accent.

82. Ledingham acknowledged that this evidence was inconsistent to what was stated previously in the response prepared by Mr Ron Dunham, Chief Executive of the respondent to the President of the ADB. In that statement she referred to the incident of the “product familiarisation program”. Here evidence was that she and MacRae had tried to say “product familiarisation program”, became tongue tied and laughed. It was reported that the following day at morning tea they had attempted to say this again and still failed and there was further laughter. They stated that they did not make any reference to how the applicant had pronounced this.

83. When asked whether she was good friends with Furner, Wright and Barnes, she said that they were work colleagues and did not socialise. In relation to the “product familiarisation program”, she said that it was never her intent to offend the applicant at all and she apologised and was particularly remorseful that he had been offended, when she became aware that the applicant was sensitive about comments about the colour of his skin.

Native language complaint

84. Ledingham says that she asked the applicant what language he spoke at home. She states that the background to the question was that she had worked in a number of different workplaces during her career. She stated she worked at Gosford Hospital which was a very multicultural workplace and she made an effort to get to know her co-workers. She said that she did the same at Bathurst Base Hospital Pharmacy. She had friendly conversations with the applicant which covered many subjects. She said there were conversations about families and children. She claims he took an interest in her background and asked her about her religion and she also asked about his. She said this was part of the process of connecting with people with whom he worked. Against this background, she did ask the applicant what language he spoke at home, what food they ate and about his parents.

85. Ledingham said that she had not been provided with any training to deal with persons from a non-English speaking background while employed by the respondent. Ledingham denied that she asked about what language the applicant spoke at home in the context of the incident of the “product familiarisation program”.

Threatening telephone message incident

86. Ledingham gave evidence that she was working a five day fortnight at Bathurst Base Hospital. Orange Base Hospital was moving to a new premises and she was approached by the Deputy Director of Pharmacy at Orange Base Hospital to undertake 8 weeks of temporary employment working a five day fortnight. She would still be employed by the Western NSW Local Health District. The employment was to assist Orange Base Hospital in the set up of the new facility. She spoke to the Director of Medical Services, Jo-Anne Karnaghan, who cleared her to undertake that work. The days in Orange were not days when she was working in Bathurst.

87. Ledingham’s evidence was that, as a matter of courtesy, she spoke to the applicant and told him of this arrangement. To her surprise, he became very angry very quickly. He raised his voice and was shouting at her and over the top of her when she tried to explain the arrangement. He spoke to her in a sharp tone. She states that he wagged his index finger in the direction of her face while shouting at her. He said words to the effect, “You will not do it. You will face the consequences if you do. You are my staff and you will not work elsewhere”. She stated that she was upset by this encounter since it seemed unjustified and illogical. She did not report the applicant’s behaviour, however, it was witnessed by Furner. It was put to Ledingham in cross-examination that she had never been intimidated by the applicant. She denied this and said that it was the case she had. She said that she felt intimidated by the way the applicant spoke to her, that he was cross and he had told her that she would suffer the consequences. Ledingham acknowledged that she recalled seeing the applicant’s telephone numbers on the list of staff contacts.

Fire evacuation incident

88. Ledingham acknowledges the incident. She said on that day the fire alarm went off, she was in the pharmacy and Barnes was nearby. The applicant spoke words which she did not understand clearly and said, “I beg your pardon?”. The applicant then spoke more slowly and clearly and she heard him say: “We have to leave now, the fire alarm”. She states that she had been constantly requesting the applicant to repeat what he said because she had difficulty in understanding him during the time that he worked in pharmacy up to that point. She said that she became impatient with it from time to time and, on this occasion, in exasperation, she said to Barnes: “I wish Thens would speak better English”. She claimed that Barnes did not laugh or giggle, it was simply a statement of fact, it occurred in the pharmacy and not when the applicant’s child was present.

Complaint about daughter in pharmacy incident

89. Ledingham states that she is not aware of any complaint being made by one of the pharmacy staff about the applicant’s daughter. She said that it was unlikely that one of the pharmacy staff would have complained because they all knew that he had approval to bring his daughter to work. She thought it more likely that someone else in the hospital had complained. She, therefore, said, “I don’t have a problem with it but I could understand why some people would. There may be people who think that it’s not right for you to bring your child to work while they pay child care fees”. She denied saying that they were all paying child care fees and the applicant was not.

The smirking incident

90. Ledingham’s evidence was that she was familiar with Copson. She claimed that she has a loud voice and speaks very abruptly and assertively with people, but usually in a good natured manner. Ledingham states that she often makes jokes at other people’s expense and often at her own expense. She describes her as a happy go lucky character. She also states that she has a hearing problem which might explain why she talks so loudly all the time. She recalled this instance when Copson was speaking to the applicant in her usual manner. Ledingham could observe that the applicant was becoming upset with the manner in which Copson was addressing him and was expecting that the applicant would rebuke Copson for speaking like that. She glanced at MacRae and exchanged a questioning glance to suggest, “I wonder when Thens will give her a dressing down”. She did not recall the applicant being upset with herself or MacRae, but she did observe that he spoke very curtly to Copson.

The uniform issue

91. Ledingham states that she enquired of Karnaghan whether the applicant could dictate to them about what to wear in the catalogue and Karnaghan advised that they could wear whatever was in the catalogue. She states that she never alleged that the applicant told her to wear a skirt. He had commented that she should wear skirts or pants instead of three quarter trousers.

12 February 2013

92. It was Ledingham’s evidence that the behaviour she observed during the pharmacy staff meeting was that which she had observed during the previous three years or so and of her own experience. She states that she had never made a complaint to a superior about the applicant’s behaviour hoping that it could be sorted out by a more personal approach. In her evidence, she acknowledged that in a statement to Richard Elligett (referred to as Elligett) that she stated that the applicant was a bit agitated but she did not mention angry. At that time, she made no mention of the applicant interrupting Barnes. She did not use the words “aggressive” and “sharp tone” to Elligett. Her comments about the inappropriate behaviour and tone were different from the description she gave to Elligett. It was put to her that she turned a “mild incident into a major incident” and she responded that “It seems that way”. It was put to her that she did so because she wanted to get rid of the applicant which she denied.” It was put to her that there was a little “club of MacRae, Barnes, Furner and herself” and she said, “yes”. She was asked what it was about the applicant’s body language she observed and she said that he had appeared to be hostile and a bit on edge and agitated. She said that it was quite a mild reaction compared to other incidents that she had observed but she was a bit surprised that it had come to this. She did not witness the conclusion, the discussion was removed to another room by David Wright.

Duff

93. Sandra Duff ( Duff) gave evidence that she is the Director of “Workforce and Culture” for the respondent, the Western NSW Local Health District. She states that she has been employed by the Department of Health for 21 years and in her current position since 2012. She is responsible for providing high level strategic and operation advice in the area of human resources, workplace culture, risk management, learning and development and workforce systems.

93. It was Duff’s evidence that it was a term of the applicant’s employment that he sign an acceptance agreement, acknowledging the receipt of the Code of Conduct and Agreement to Abide by the Policies and Procedures of NSW Health Greater Western Area Health Service Division. The offer of employment also indicates that he was required to become familiar with and abide by the NSW Health Department’s Code of Conduct. He signed the acceptance of agreement dated 24 December 2009. At the time of his appointment, he was directly reporting to Dr Jo-Anne Karnaghan, Director of Medical Services. When she left, he reported to Dr Clayton Spencer, the Incoming Director of Medical Services. In or about September 2012, he commenced reporting to David Wright, General Manager, Bathurst Health Service. The change of reporting was agreed to for a number of reasons including that the applicant requested that he report to Wright as a result of a second investigation being conducted. It was considered beneficial to all concerned for the applicant to report to somebody that he already knew. As head of department, the applicant was responsible for managing MacRae, Barnes, Ledingham and Furner. The were employed in the Pharmacy Department at the time of his employment and continued to be employed. On or about 31 May 2012, Kay was employed as a pharmacist and replaced MacRae while she was on leave.

94. Duff gave evidence that on or about 8 October 2011, MacRae and Barnes submitted grievances against the applicant concerning breach of privacy. It was alleged that he had accessed their medical records and that the access was not made in the course of his clinical duties. A formal investigation was conducted by Karnaghan and Tiffany Charlton, Human Resource Consultant, Workforce and Culture for the respondent, into the allegations made by MacRae and Barnes. Both allegations were sustained, meaning that there was sufficient evidence that the alleged conduct occurred.On 9 February 2012, Ms Lyn Weir, Director of Operations for the respondent, sent a letter to the applicant setting out the findings of the investigation. The letter also set out recommendations including an extensive team re-building program to be instituted by the Medical Administration and Human Resources in early 2012 and constituted a first formal warning to the applicant.

95. On or about January 2012, MacRae and Barnes submitted further grievances against the applicant. The allegations included incidents which, in their view, amounted to systemic bullying, harassment and inappropriate workplace behaviour by the applicant for the period January 2010 to December 2011. At the time the allegations were made, the alleged breaches relating to the first investigation had yet to be determined. It was therefore decided that at the conclusion of the first investigation, the second set of allegations would be reviewed. The applicant then made allegations of inappropriate workplace behaviour against MacRae and Barnes. Duff stated that she approved an investigation to be undertaken into the allegations by an external consultant. Ms Annette Simpson conducted the investigation which commenced on or about early March 2012. Ms Simpson interviewed each of the pharmacy staff individually and set out her findings of her investigation in a report dated April 2012. Duff summarises the complaints as follows:

Ostracism in the workplace - Barnes;

Staff uniforms – over controlling and intimidation Barnes and MacRae;

Sick leave – over controlling and intimidation Barnes and MacRae;

Radio – over controlling and intimidation Barnes and MacRae;

Staff talking and socialising in the pharmacy – attempts to isolate staff Barnes and MacRae;

Query to union regarding back pay – intimidation and aggression Barnes;

Part time working arrangements – bulling and intimidation Barnes;

Communication – lack of or poor – Barnes and MacRae;

MacRae’s appraisal – intimidation of MacRae

97. The complaints of the applicant against Barnes and MacRae were summarised as follows:

Alleged errors in dispensing by Barnes;

Not heeding manager’s directive to keep socialising to a minimum - Barnes;

Not happy to accept the applicant as manager – MacRae;

Inappropriate comments made to cleaning staff about manager – Barnes and MacRae

98. The Simpson report found that allegations made by MacRae and Barnes of inappropriate workplace behaviour against the applicant in that he bullied or attempted to bully them were sustained. The report found that the allegations made by the applicant were vexatious. The applicant received a second formal written warning.

99. Duff also refers to a letter from Scott McLachlan Chief Executive of Western NSW Local Health District to the applicant. He reviewed the investigation report and supporting documentation. He was satisfied that all NSW Health Policies had been applied and that the applicant had been afforded the opportunity to respond to the allegations made against him and to comment upon the findings. He also noted that the applicant had raised concerns in his letter that he believed that he had been victimised for making a complaint with the ADB or proceeding with the discrimination complaint with the ADB. Mr McLachlan writes that upon review of the documentation made available to him, it was clear the external investigation conducted by Simpson took place some months prior to the respondent receiving the complaint from the ABD. He observed that as the applicant acknowledged in his letter, the proceedings with the ADB are not related to the internal investigation into his workplace conduct. It was, therefore, appropriate that the investigation was finalised without reference to the ADB proceedings and there was no evidence to support his claim that he had been victimised as a result of his complaint to the ADB.

100. A number of recommendations were made as a result of the findings including a change to the reporting line and consideration of an additional support in the form of an appropriate coach mentor which were made in order to build his capacity in people management and leadership aspects of his role. He had discussed those recommendations with David Wright.

101. Duff states that on about 1 May 2012, the applicant lodged a complaint with the President of the Anti Discrimination Board. In about December 2012, the ADB advised that the matter had been referred to the former Administrative Decisions Tribunal.

102. She referred to a grievance notification by the applicant in respect of Kay and Furner. It involved applicant attempting to manage Kay. Furner had been present and had became upset about the applicant’s conduct. The applicant complained that he felt harassed by Kay and Furner. Entwistle responded to the applicant’s complaint. She found that it was an appropriate conversation between health professionals. She found no evidence that the applicant was harassed.

103. The situation was that there was ongoing workplace conflict within the Bathurst Health Services Pharmacy Unit. Allegations had been made by the temporary pharmacist, Kay, in relation to clinical processes, practices and systems. Allegations had been made against the applicant by David Wright, General Manager, Bathurst Health Service and also Brooke Barnes, Pharmacy Technician, Bathurst Health Service, relating to inappropriate workplace conduct on or around 12 February 2013. There were previous sustained findings against the applicant in February 2012 for accessing the medical records of Barnes and MacRae. There were further sustained findings of inappropriate workplace conduct and bullying behaviours in January 2013 against Barnes and MacRae made by an external investigator the findings and outcome confirmed by the Manager of Workforce and the Chief Executive. The applicant had made allegations against Barnes and MacRae that were investigated during the investigation and were not sustained. The applicant was given a formal warning for the second occasion.

104. There was a change of the reporting relationship from the Director of Medical Services Bathurst Health Service to the General Manager Bathurst Health Service. The General Manager considered the possibility of sourcing an appropriate coach or mentor for the applicant. The applicant had been reluctant to accept this recommendation. The progress of the Anti Discrimination matters was noted. It was noted that the current situation was that employees working within the pharmacy unit had ongoing workplace conflict and sustained incidences of bullying behaviours by the applicant. Employees within this unit have expressed their ongoing ability to continue working within the environment, both to management and to an independent party. There were potential and significant risks associated with stress claims within the unit with an estimated cost in excess of $850,000.00 if all parties involved had workers compensation claims upheld. There was possible continued escalation of workplace issues resulting in increased sick leave, absence leave and possible decline in the unit’s ability to perform clinically. Relocation of the applicant to Orange Health Service working as a supernumerary pharmacist was explored. However, other employees within the Orange Health Service Pharmacy Unit had advised that due to previous dealings with the applicant they would be unable to work with him. There were ongoing concerns about the interactions and people management capabilities of the applicant. There was a requirement to engage an investigator to investigate the recent allegations.

105. Duff’s evidence was that on or about March 2013, a Risk Assessment was conducted in relation for the purposes of assessing individual and organisational risks associated with the allegations complaints process. This was in accordance with NSW Health Policy and Processes used in the decision making process as to whether to place the applicant on special leave. The Risk Assessment was undertaken in conjunction with the General Manager David Wright and herself. It was based on assessing the risk to all parties once the applicant became aware of the allegations made against him by Barnes and Wright. The Risk Assessment identified there was a risk to the individuals, both Barnes and Dharmalingham. Based on significant history that this risk may have a clinical and workers compensation risk to the organisation. Accordingly, a decision to stand the applicant down was made. He was advised and placed on special leave on 15 March 2013.

106. A copy of the Risk Assessment in relation to the applicant dated March 2013 and signed by Sandra Duff on 2 April 2013 was provided. In conclusion under the heading “General Risk Assessment” the following concerns were noted. There were concerns relating to the well-being of all employees working within the Bathurst Health Service Pharmacy Unit while another investigation is undertaken. There were significant risks from a risk management aspect, both on the clinical ability for the unit to function and possible workers compensation risks. There were concerns relating to the ongoing ADT matter. There was an inability to find alternative work locations for the applicant. There was a need for an external investigator to undertake the recent allegations. It was recommended that the applicant be placed on leave with pay immediately.

107. Duff refers to the third investigation in or about March 2013. A complaint was made against the applicant by David Wright, General Manager at Bathurst Base Hospital and Brooke Barnes. The allegations concerned a meeting that took place on 12 February 2013 between David Wright, the applicant and Barnes regarding the uniform Barnes was wearing that day. Wright alleged he had observed several behaviours that were potentially in breach of the NSW Department of Health Code of Conduct. He alleged the applicant spoke to Barnes in a manner that lacked respect and was potentially intimidating. Barnes alleged that the applicant approached her in an inappropriately rude manner on 12 February 2013 in relation to her uniform and later in a meeting with David Wright. Barnes alleged the applicant was argumentative, inappropriate and spoke over the top of her and this caused her to become distressed.

108. Duff approved an investigation to be undertaken into the allegations by an external consultant, Mr Richard Elligett, Human Resource Manager of Orange PPP Spotless. He set out the findings of his investigation in a report, dated 8 August 2013. The applicant was provided with a written statement through his legal representative in connection with the investigation but declined to be interviewed on the advice of his medical practitioners. The report found that the applicant spoke and behaved in an aggressive and intimidating manner towards Barnes and, in doing so, breached the NSW Health Code of Conduct. She provided a copy of a letter from herself of 19 September 2013 to the applicant and also a copy of the findings of the third investigation in a letter, dated 7 November 2013. She advised that taking into account the results of that investigation and the previous investigation and formal warnings, she was going to recommend to the Chief Executive, Mr McLachlan, that the applicant’s employment be terminated.

Furner

109. Julie Furner (Furner) gave evidence. She was employed as a Pharmacy Technician by the respondent at the Bathurst Base Hospital Pharmacy. She worked four days per week.

The “looking pale” incident

110. Her evidence was that on the day Ledingham made the comment that the applicant looked pale, the applicant laughed. Her evidence was that he said: “I will have to get some powder on my face”. She states that it was her opinion that, at that time, the applicant did look unwell. It was her opinion that the words were said as an expression of concern for the applicant’s health. She denies that the applicant responded, “Don’t be funny, my colour is black. I can’t look pale”.

111. Furner’s evidence is that a couple of weeks after the incident there was a staff meeting where she was present. The applicant raised the issue of discrimination in the workplace. He had a copy of the Code of Conduct and highlighted the section relating to nationality. He asked everyone at the meeting to sign it. She said that she signed the document when she started employment and it was not necessary for her to sign again. She indicated that she was offended that she was asked to sign it again. The applicant indicated to her that he had spoken to the person about the issue and if he had not spoken to her, then it was not about her.

112. She claimed Ledingham then asked if it was about her comment that the applicant looked pale. The applicant asked her if she was happy to discuss the issue in front of others and she said she was. Furner claimed she said that the applicant did not say anything at the time of the incident and laughed. He then asked her what she wanted him to do and if she wanted him to say she was offended. She responded that that was the appropriate response if he was offended. She said there was no discriminatory content that was said to him. She has no recollection of the “product familiarisation program” discussion.

Threatening telephone message incident – 4 March 2011

113. Furner was present at work when the applicant played the recorded voice message. Her evidence was that it was a male voice. The applicant stated that it must have been someone from Health Services, otherwise how would they know he was Indian. Furner stated as the message went through to his voicemail, he would have had a recorded voice message. The applicant agreed with this. She responded that as he is Indian and he did speak with an accent, somebody going through to his voicemail would hear his accent. The applicant said that he telephoned all the staff over the weekend except MacRae. He thought it must have been MacRae’s husband who made the call. Furner denied that it was his voice.

The daughter in the pharmacy Incident

114. Furner states that the applicant made a rule that no family members were allowed in the pharmacy. She was at work on one occasion and the applicant was the only other person at work at that time. He said to her that he was going to bring his daughter in so that she could sit in his office. She observed that the applicant’s daughter came into the pharmacy and sat in the applicant’s office for some time which was about an hour or two. This was the only occasion this occurred. She said that she was not involved in the complaint to Enwistle

The Uniform issue

115. Furner gave evidence that she also had a conversation with the applicant about wearing three quarter pants. She had been wearing them for some years, usually in summer. She was wearing them on one occasion when she was approached by the applicant. He advised that he had spoken to Ledingham about wearing three quarter pants and did not consider it professional. He said that he preferred they wear skirts or trousers. She said that three quarter pants were approved in the catalogue. He asked her to get the catalogue. She obtained the catalogue which she showed to the applicant. She agreed that he did not insist that they wear a particular item of clothing. She said that it was indicative of the manner in which he supervised staff. She claimed that there was an overzealous control in relation to all aspects of the workplace. She gave an example of the radio which was sometimes on during work hours. The applicant put a mark on the volume dial of the radio and the volume was not to exceed the marked point. Whistling to tunes on the radio was disallowed. Use of a mobile phone was disallowed except with permission. If staff were to receive a call, Furner said that the applicant required that he be notified first.

12 February 2013

116. Furner gave evidence that the applicant said to Barnes, “Brooke, why are you not wearing your uniform today?” She was present on that occasion. Barnes advised the applicant that she was wearing her uniform. She displayed the manufacturer’s logo indicating it was departmental approved garment. She said that she had been wearing the uniform for more than four years and said, “Is there a problem?” The applicant responded that there was no problem. Her evidence was that the applicant spoke to Barnes in a very abrupt and assertive manner. She was taken aback by the exchange. In relation to the meeting, her evidence was that the applicant said at one point, “You know you can come to me with any problems that you have”. Barnes said, “Well what was wrong with my uniform?” The applicant was quite agitated in responding. She observed that David Wright intervened and request the issue be dealt with in a separate meeting. She observed that there was a separate meeting at the close of the staff meeting. Barnes returned from the meeting visibly upset which she described that she was in tears, her face looked strained and unhappy.

117. Furner stated that she had worked with the applicant for about three years. She had noticed that for some reason unknown to her the applicant treated her differently to the other staff members. She states that the best way to describe it was that she was a “ favourite”. She said that when she arrived at the pharmacy in the morning they would all say “Good morning” to the applicant but the applicant would only respond to her saying “Good morning Julie”. She states that he would pointedly not respond to other staff members. This made her feel uncomfortable. She worked just the same as the other staff members and she considered that the applicant’s behaviour was unjustified.

118. Furner agreed that the applicant was an excellent Pharmacist, but stated that his communication skills were poor. Her evidence was that the applicant had treated her with respect and had never bullied or harassed her and had never been rude to her. She stated that he had never treated her directly badly, but she had seen poor behaviour at times towards others. Furner also clarified what she meant by the applicant’s limited or poor communication skills. She said that this had nothing to do with his English, it was the way in which he tried to get his point across.

Did the applicant have a disability at the relevant time

218. The evidence before the Tribunal indicates that the applicant was diagnosed with an Adjustment Disorder with Anxiety and Depression in January 2012. He has time off work initially as a workers compensation claim and then sick leave. His evidence is that he continued to take medication and to engage in stress relief measures throughout 2012. He sought medical treatment when travelling in India for symptoms in July 2012 and again in December 2012.

219. The applicant relies upon a report from Dr Yuvarajan. He also relies upon a report from Mr Borenstein to support a finding that he had a psychiatric condition on 12 February 2013. The respondent disputes the conclusions of Mr Borenstein because of claims including that he was not given a complete or correct history, he did not have all relevant documents and the respondent and Tribunal were not provided with documents upon which he based his conclusions. The respondent submitted the report of Dr Yuvarajan should be given little weight as he was not available for cross examination. Because of the findings below it was unnecessary to determine these issues.

220. The respondent acknowledges that after being placed on special leave that the applicant was diagnosed with a psychiatric condition in the form of Major Depression. It was the respondent’s primary submission that the applicant did not have a genuine psychiatric condition at the time of the meeting of 12 February 2013 because the respondent had not been notified of this. It was claimed that this was supported by the delay in notifying the respondent that the applicant had a psychiatric condition at this time. The respondent asserts that they were not put on notice of this until the day of the commencement of hearing.

221. David Wright gave evidence that the applicant had not advised him that he had an ongoing psychiatric condition, nor sought any concessions in relation to any diagnosed psychiatric condition at the time of 12 February 2013. The applicant’s own evidence was that during 2012 he took valium and engaged in stress relief measures. The Tribunal finds that the applicant had a diagnosed psychiatric condition in early 2012. He had returned to work after the time off in January 2012 and had continued to work full-time. The Tribunal finds that there is insufficient evidence to establish that the respondent was aware that the applicant had a diagnosed ongoing psychiatric condition as at 12 February 2013.

222. The definition of disability includes a past disability. The Tribunal finds that the respondent was clearly on notice that at the time of the meeting of 12 February 2013, that 12 months earlier the applicant had been diagnosed with a psychiatric condition. The Tribunal finds that this is a disability within the meaning of s.4 of the ADA.

What occurred

223. On 12 February 2013 the applicant questioned Barnes about her uniform. As a consequence, the applicant visited David Wright in his office and discussed the issue of Barnes’ uniform that day. David Wright attended the staff meeting at the request of the applicant. During the meeting Barnes raised the issue of her uniform. A file note of David Wright recorded that Barnes had raised the issue of her uniform and her tone had been more angry than assertive. The applicant and Barnes were reported to have been talking loudly over each other. David Wright formed the opinion that the discussion should not be continued at a general staff meeting. Consequently he determined this issue would be discussed privately between the two parties involved after the conclusion of the staff meeting.

224. During the separate meeting there had been a dispute between Barnes and the applicant about the manner in which he raised the issue of her uniform and/or the tone of his questioning. Barnes then commented that the applicant was in a bad mood that day and that he “had a go” at both herself and Kay that morning. The applicant agrees that she stated that he had argued with Kay that morning. He claimed she was making up issues. In resect of what occurred in the separate meeting, there is a significant divergence as to what occurred after this.

225. It is the applicant’s evidence that he was very distressed and aggrieved when Barnes raised what he considered to be an irrelevant issue during the staff meeting. His stomach was churning, heart rate increased and he felt hot and stiff. He told Barnes she was making up issues. David Wright told him to stop and he then apologized to Barnes. David Wright enquired if Barnes was alright to go back to the Pharmacy and she indicated that she was and then left. It was his evidence that at the end of the meeting, he understood that the issues had been resolved. It was also the applicant’s submission that he was undergoing an anxiety attack.

226. David Wright’s evidence and that of Barnes is the applicant became overly assertive and talked over the top of Barnes and would not stop, even when she started crying. David Wright tried to end the discussion, but the applicant kept talking. David Wright’s evidence is that he was a bit “rattled” by the applicant’s conduct, as it was the worst confrontation of a senior staff member to a junior staff member that he had ever seen and he considered it unacceptable.

227. The Tribunal accepts that in the context of a meeting purportedly about uniforms, that the applicant would have been a little confronted, if not distressed when Barnes raised the issue of him arguing with Kay. The applicant’s evidence of his response is not consistent with that of Barnes, nor David Wright. While the applicant had been in dispute with Barnes over many issues, there is no probative evidence to suggest that up until this point, David Wright had not been impartial in relation to these disputes. David Wright’s actions following the meeting are consistent with his version of events that he considered that Barnes was upset by conduct of the applicant and that he considered the applicant’s conduct to be totally inappropriate. It was the evidence of David Wright that he tried to stop the applicant from speaking when he became agitated, but was unable to do so.

228. The Tribunal finds that there had been a dispute between the applicant and Barnes during the general Pharmacy staff meeting on 12 February 2013. Consequently he had intervened and directed that they hold a private discussion following the staff meeting. In that meeting the applicant became increasingly agitated following Barnes comment about an argument with Kay. The applicant responded to this by talking over the top of her in an overly assertive manner and saying she was making things up. He continued to do so even when she started crying and did not stop even when David Wright repeatedly directed him to do so.

Detriment

229. The Tribunal considered if the applicant suffered a detriment in relation to his treatment on 12 February 2013. It was the applicant’s submission that the respondent should have avoided further contact between Barnes and the applicant. David Wright should not have placed them in a small room together for a separate meeting. This resulted in an incident whereby they were both distressed. In addition it was submitted that David Wright should have intervened earlier to stop the meeting at the first sign of the applicant’s distress.

230. The Tribunal does not accept that the applicant suffered a detriment as a result of David Wright’s management of events on 12 February 2013, either during the staff meeting or in the separate meeting. The Tribunal finds that the applicant would have suffered a detriment as a result of the decision of David Wright to lodge a complaint about his behavior during the second meeting.

Differential Treatment.

231. In relation to this complaint, the applicant has provided no evidence of a comparator and submits that the Tribunal should have regard to a hypothetical comparator. In order for the applicant to establish that the respondent discriminated against him on the grounds of his disability, the applicant must establish differential treatment. In respect of the comparison, the Tribunal must consider whether the applicant was treated less favourably, than a person who did not have the applicant’s disability (a history of a past psychiatric condition) would have been treated in circumstances that are the same, or not materially different.

232. The Tribunal considered what would constitute “… circumstances that are the same, or not materially different”, and what were “… all of the objective features which surround the actual or intended treatment of the disabled person..." on the facts of this matter. The Tribunal determined that the circumstances that are the same or not materially different, would involve a comparison between an employee with a history of grievance procedures involving another staff member. That person would be in dispute with the other staff member during a staff meeting. The staff member would not have a history of a past psychiatric condition. As noted there was no evidence of an actual comparator, so the Tribunal therefore considered the issue of causation.

Causation

233. There was no direct evidence that the applicant’s disability, being his known past psychiatric condition, was the reason for the treatment of 12 February 2013.

234. The Tribunal considered whether it was possible to draw an inference that the conduct of David Wright on 12 February 2013 constituted discrimination on the grounds of the applicant’s disability.

235. The applicant submits that the conduct of David Wright was devious and motivated by an improper purpose. It was submitted that this is demonstrated by his inability to recall that Barnes was angry in the general staff meeting, despite recording this in a file note. It was submitted that the last thing any responsible employer should have done, was invite the applicant and Barnes into a small room to talk about issues that were in conflict.

236. The Tribunal accepts that David Wright’s recall was imperfect. His decision to hold a separate meeting may have been imprudent in the circumstances. The Tribunal does not accept that there is evidence to establish that he was motivated by an improper purpose, or that the real reason for his conduct was the applicant’s disability. The Tribunal finds that David Wright has provided a plausible explanation for his decision to attend the staff meeting and to conduct a separate meeting with just Barnes and the applicant. He also gave evidence that he tried to stop the conflict from escalating in the separate meeting. He provided a plausible explanation for his concerns after his observation of the applicant’s conduct and why he made a complaint about the applicant’s conduct. He considered it to be very inappropriate and unprofessional. Whether or not his decision to hold the separate meeting was prudent in the circumstances, the Tribunal accepts that David Wright has provided a plausible more innocent explanation for his conduct which was the true reason for his conduct. The Tribunal is unable to find that there is a probable connection between his conduct and the applicant’s disability. The Tribunal is unable to find that the respondent directly discriminated against the applicant on the grounds of his disability in relation to the events of 12 February 2013.

The Victimisation Complaint

237. The applicant contends that the decision to place him on special leave on 15 March 2013 amounts to victimisation.

238. S. 50 of the ADA provides:

50 Victimisation

(1) It is unlawful for a person (

"the discriminator" ) to subject another person (

"the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

239. There are four elements which must be proven in order to establish a complaint of victimisation. Firstly the respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment. Thirdly, the detriment must have occurred on one of the grounds set out in sub-paragraphs (a) to (d) of s. 50 (1) of the ADA. Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 it was stated that, “victimisation occurs when the respondent causes the complainant to undergo loss or damage or injury based on the fact that the complainant has made a complaint or allegation within the meaning of section 50 (1).”

240. The meaning of “on the ground” in s. 50 (1) of the ADA has been considered in a series of decisions. It has been determined that as with a complaint of direct discrimination the phrase means that lodging a complaint must have been at least one of the “real” “genuine” or “true” reasons for the conduct. See Nicholls v Nicholls v Director General, Department of Education and Training (No2) [2009] NSWADTAP 20 approved in Jones v Trad [2013] NSW CA 389 at 98.

What occurred

241. On 15 March 2013 the respondent placed the applicant on special leave with full pay, pending the outcome of an investigation into his alleged inappropriate conduct in the work place. It was not in dispute that the applicant had brought proceedings of discriminatory conduct against the respondent. An unsuccessful mediation had occurred between the parties at the ADT a few days earlier.

Detriment

242. The applicant received notice in writing from Wright on 15 March 2013 that he was being placed on special leave with full pay. He was unable to work in his position of Director of Pharmacy while on special leave. This also had implications for him seeking other work a consideration which was identified in the Risk Assessment. That evening the applicant presented to Bathurst Hospital having had suicidal thoughts.

243. The Tribunal finds that the decision to place the applicant on special leave, despite being on full pay constituted a detriment.

Causal connection between the applicant bringing proceedings against the respondent under the ADA and the decision to place the applicant on special leave

244. David Wright and Duff gave evidence about the respondent’s reasoning for placing the applicant on special leave. The General Manager David Wright had personally witnessed conduct of the applicant on 12 February 2013 which he considered to be totally inappropriate for a senior manager. Consequently he was arranging an investigation following the events of 12 February 2013. The applicant had received two prior formal warnings in respect of his conduct in the work place. The conflict in the pharmacy was long-standing. David Wright therefore made enquiries about other recent incidents of work place conflict involving the applicant. He discovered that there had been a recent dispute with Derek Kay, a pharmacist who had previously declined to become involved in the work place conflict. The applicant had made a complaint about Kay which had been resolved. David Wright’s evidence was that in discussion with Duff, it was determined to seek a “Risk Assessment” which was prepared by Charlton. Charlton then sought additional advice about workers compensation risks from Judy Robinson.

245. The Risk Assessment identified significant risks in terms of workers compensation claims and liabilities and also about the ability to maintain a functioning pharmacy. There was concern for the well being of all staff while another investigation was undertaken. There was an inability to find alternate work for the applicant. In the background it was noted that the applicant had commenced proceedings under the ADA which were before the ADT. The discrimination complaint involved allegations against Barnes, Ms Wright (MacRae) and Ledingham. It was also noted that it had been unable to be resolved by mediation. Under the summary of the General Risk Assessment, it was recorded that there were concerns relating to the ongoing ADT matter.

246. The Tribunal is satisfied that David Wright was concerned that there was a very real risk the pharmacy would “implode”. David Wright’s evidence is that it was factors identified in the Risk Assessment, coupled with the email from Bourke about an incident in January involving Kay and Furner which provided the impetus for placing the applicant on special leave. This culminated when Wright received advice that a proposal to relocate the applicant to the Pharmacy at Orange Base Hospital could not occur.

247. The evidence is very clear that the that there was a history of two prior formal warnings against the applicant and that by March 2013 the Pharmacy at Bathurst Hospital was becoming increasingly dysfunctional. The number of staff finding in conflict with the applicant was increasing. Complainants were consistent in what they described as his controlling and bullying personality. What was described by pharmacy staff goes well beyond the applicant’s description of not allowing persons to finish sentences or tonal characteristics of his language. The evidence indicates that staff were humiliated or reduced to tears.

248. The evidence of David Wright and Duff was that they had regard to the Risk Assessment when deciding to place the applicant on special leave. The Risk Assessment is dated March 2013, but was actually signed by Duff on 2 April 2013. It was unclear if the Risk Assessment was in the final concluded form by 15 March 2013 when the applicant was placed on special leave. By 15 March 2013 a mediation before the ADT had occurred and had been unsuccessful in resolving the dispute. Neither Duff nor David Wright gave evidence that on 15 March 2013 the Risk Assessment did not include a similar reference to the ADT proceedings as a risk factor.

249. Having regard to that document, the inescapable conclusion is that the Risk Assessment identified that the respondent was concerned about the ongoing impact of the ADT matter. In the context of other factors identified, the Tribunal accepts that it was not a significant concern, but it was an identified risk. The respondent submits that it would have been odd if there were no reference to the ADT proceedings, which had to be referred to. The Tribunal accepts that the ADT proceedings would form part of the background. The Tribunal does not accept the submission in so far as it is suggested that the reference is simply factual. The Risk Assessment identified the ADT proceedings as an ongoing risk factor and there was no evidence from the respondent that it was not a factor in the decision to place the applicant on special leave. David Wright was specifically cross examined about the Risk Assessment. His evidence was that he acknowledged that the ADT proceedings were identified in the Risk Assessment and he had regard to the Risk Assessment. The Tribunal therefore finds that one of the real reasons or genuine basis for the decision was the fact that the applicant had brought proceedings under the ADA.

250. In summary the applicant had commenced proceedings under the ADA which at the time of the decision were before the ADT. A mediation had occurred a few days before the decision of 15 March 2013 and was unsuccessful. On 15 March 2013 the respondent placed the applicant on special leave. The Tribunal has found that this constituted a detriment. The Tribunal has further found that the complaint in the ADT was at least one of the real reasons for the decision to place the applicant on special leave. While we accept that the ADT proceedings may not have been significant, S. 4A of the ADA provides that that where an act is done for 2 or more reasons, and one of the reasons consists of unlawful discrimination, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the ADA the act is taken to be done for that reason. The Tribunal finds that the criteria for s 50 of the ADA have been met and consequently finds that the decision to place the applicant on special leave constitutes victimisation for the purposes of the ADA.

Remedy

251. The applicant claims damages. The Tribunal has a power to award damages if the complaint is substantiated. In considering what is the appropriate level of damages the Tribunal has regard to Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, where it was noted that the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult. "...damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage."

252. In Sharma v. QS Pty Ltd t/as KFC Punchbowl [2010] NSWADTAP 22 the Appeal Panel referred to decisions of Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70, Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62 (1968) 119 CLR 118 and Tupou v Scruffy Murphy's Pty Ltd & ors [ 2007] NSWADT 192. It was stated that the amount awarded depends on the “experience and good sense” of the Tribunal member. See Alexander v Home Office [1988] 1 WLR 968 per May LJ at 975. In Purvis it was noted that damages for a breach of the Act must be compensatory, not punitive therefore any damages must relate to the issues arising out of the incident and not seek to punish.

253. The applicant was successful in respect of parts of his complaint. The Tribunal has found that the respondent discriminated against him on the ground of race in relation to a complaint that he spoke his native language on the phone in front of others. This complaint formed part of a grievance investigation and it was the applicant’s evidence that he was very upset. Additionally the Tribunal has found that he was victimised when he was placed on special leave with full pay during the third investigation into allegations of workplace misconduct. He presented to hospital that evening in a highly distressed state following the decision to place him on special leave. He was unable to work in his position as Director of Pharmacy for the period he was on special leave. We have determined that an award of $10,000 is an appropriate figure in the circumstances of this matter. The respondent is to pay $10, 000 within 28 days from the date of these orders.

Costs

254. Any application for costs and any evidence in support of such an application is to be filed and served within 28 days of these orders.

255. Any reply to such application and any evidence in support is to be filed and served within a further 28 days.

256. Any application for costs will be determined on the papers unless there is an application for hearing.

Orders

• The applicant’s complaint of discrimination on the grounds of race in respect of the native language complaint is substantiated.

• The applicant’s complaint of discrimination on the ground of race is otherwise not substantiated.

• The applicant’s complaint of discrimination on the grounds of carer’s responsibilities is not substantiated.

• The applicant’s complaint of discrimination on the ground of disability is not substantiated.

• The applicant’s complaint of victimisation is substantiated.

• The respondent is to pay the applicant the sum of $10,000 within 28 days from the date of these orders.

Directions

• Any application for costs and any evidence in support of such an application is to be filed and served within 28 days of these orders.

• Any reply to such application and any evidence in support is to be filed and served within a further 28 days.

• Any application for costs will be determined on the papers unless there is an application for hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 April 2015