Kesby v Nguyen-Dang (No 2)
[2009] NSWADT 310
•14 December 2009
CITATION: Kesby v Nguyen-Dang (No 2) [2009] NSWADT 310 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Julie KesbyFIRST RESPONDENT
SECOND RESPONDENT
Tuan Nguyen-Dang
South Eastern Sydney & Illawarra Area Health ServiceFILE NUMBER: 071086, 071087 HEARING DATES: 4 May, 5 May, 6 May, 7 May, 8 May, 27 July, 28 July, 29 July, 30 July and 4 September 2009 SUBMISSIONS CLOSED: 4 September 2009
DATE OF DECISION:
14 December 2009BEFORE: Britton A - Deputy President; Schneeweiss J - Non-Judicial Member ; Monaghan-Nagle L - Non-Judicial Member CATCHWORDS: Sex harassment - Sex Discrimination - in work - Victimisation LEGISLATION CITED: Anti-Discrimination Act 1977
Sex Discrimination Act 1984 (Cth)CASES CITED: Bogie v The University of Western Sydney (1990) EOC 92-313
Briginshaw v Briginshaw (1938) 60 CLR 336
Qantas Airways Limited v Gama [2008] FCAFC 69
Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Kesby v Nguyen-Dang & anor [2009] NSWADT 34
Harwin v Pateluch [1995] HREOCA 23
Herring v Benevolent Society of NSW (1992) EOC 92-408 Hill v University of New England (1990) EOC 92-291 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v State of New South Wales (2003) 217 CLR 92
Shiels v James [2000] FMCA 2
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44REPRESENTATION: APPLICANT
In personFIRST RESPONDENT
SECOND RESPONDENT
A Healey, barrister
K Eastman, barristerORDERS: 1. The complaint of unlawful discrimination on the grounds of sex made against the Second Respondent is dismissed
2. The complaints of victimisation made against the First and Second Respondents are dismissed
3. The complaint of sex harassment made against the First Respondent is dismissed.
REASONS FOR DECISION
1 In August 2006, Ms Julie Kesby lodged complaints with the President of the Anti-Discrimination Board, alleging sex harassment and victimisation against work colleague, Dr Tuan Nguyen-Dang and victimisation and unlawful discrimination on the ground of sex against her former employer, the South Eastern Sydney & Illawarra Area Health Service.
2 Ms Kesby had been employed as a Clinical Nurse Consultant with the Cardiac Unit at Wollongong Hospital on a full-time basis from 1997 to 2005. The Hospital is operated by the second respondent, the South Eastern Sydney & Illawarra Area Health Service, which at all relevant times was Ms Kesby’s employer. (For convenience, we will refer to the Area Heath Service as ‘the Hospital’.) Throughout 2005-06 Ms Kesby’s role was to manage clinical research trials conducted by the Hospital’s Cardiac Unit. It is common ground that she was extremely competent and well regarded in that role. Ms Kesby worked in a separate unit within the Cardiology Department with Ms Suzanne MacKinley. Ms Kesby worked full-time, Ms MacKinley, part-time.
3 Dr Nguyen-Dang is a specialist cardiologist. Since 1998 he has practised at Wollongong and other hospitals. Throughout 2005 and 2006 he was working between four and 16 hours per week at Wollongong Hospital. Throughout this period he was also in practice with Dr Chris Ford with whom he shared private rooms within walking distance of the Hospital. In 2004 he became a co-investigator on the ‘CLARITY’ drug trial and in 2005 investigator with the ‘BEAUTIFUL’ and ‘ILLUMINATE’ clinical trials. Ms Kesby managed these trials.
4 Professor Dwaine Owensby was the principal investigator on these trials. He headed the Cardiology Department throughout 2005 and 2006 and supervised Ms Kesby.
Background
5 In 2005, Dr Ngyuen-Dang was 40 years of age, married with three children. Ms Kesby was 45 years of age, divorced with adult children and living alone.
6 Around Christmas 2004, Dr Nguyen-Dang’s youngest son was diagnosed with cancer. His family moved to Melbourne so the son could receive medical treatment and support from their extended family. Throughout this period Dr Nguyen-Dang remained in the family home in Wollongong and regularly travelled to Melbourne to see his family. The family returned home from time to time. Around this time one of Ms Kesby’s brothers was undergoing chemotherapy. Ms Kesby had also suffered cancer a number of years earlier.
7 While the nature of the relationship between Dr Nguyen-Dang and Ms Kesby is now in dispute, it is common ground that at least until late 2004, the two were friends although they did not see each other outside work. Not surprisingly it was an extremely taxing time for both of them. They confided in each other about the problems facing their respective family members.
Complaint to Anti-Discrimination Board
8 By letter dated 17 August 2006, Ms Kesby lodged complaints with the Anti-Discrimination Board (‘the Board’) against the Hospital and Dr Nguyen-Dang. The complaint against the Hospital was of sex discrimination in employment, sexual harassment in the workplace and victimisation under the Anti-Discrimination Act 1977 (‘the Act’). The complaint against Dr Nguyen-Dang was of sex discrimination in employment, sexual harassment in the workplace and victimisation.
9 Ms Kesby alleged in her complaint that ‘in September 2005 and into October [2005]’ she was subjected to ‘harassing and unwelcome behaviour’ by Dr Nguyen-Dang. She claimed this occurred against a background of repeated, unwelcome and intrusive behaviours ‘that I felt at the time that I was able to handle’. She claimed that ‘between September 26, 2005 and throughout October, Dr Nguyen-Dang’s behaviour changed towards me and became intimidating, bullying and harassing. He spoke to me in ways that denigrated me as a woman and as a single woman. I referred my concerns to Dr Murthy, Director of Medical Services on October 14, 2005.’ Ms Kesby claimed that Dr Athula Gunasekara, a cardiology registrar supervised by Dr Nguyen-Dang ‘… was jointly a victim to the intimidation, harassment and bullying between September and October 2005’.
10 The complaints were unable to be conciliated and by letter dated 30 July 2007, the President of the Board referred the complaints against Dr Nguyen-Dang to the Administrative Decisions Tribunal under s 93C(b) of the Act. On the same day the President also referred the complaints against the Hospital to the Tribunal. The President identified the period of both complaints as 17 August 2005 to 17 August 2006.
Amendment of complaint
11 In November 2008, the Tribunal refused Ms Kesby’s application to amend her complaint to include allegations of ‘aid and abet’ but granted her application to amend her complaint against Dr Nguyen-Dang to include four additional factual allegations of conduct said to constitute sex harassment.
12 A further application to amend the complaint against Dr Nguyen-Dang to include an allegation of unlawful discrimination on the ground of sex, was refused (Kesby v Nguyen-Dang & anor [2009] NSWADT 34).
13 In final submissions, Ms Kesby made a further application to amend her complaints (see Ms Kesby’s submissions, filed 1 September 2009). That application was refused.
Material before the Tribunal
14 The complaints before the Tribunal encompass numerous incidents alleged to have occurred over a long period involving many people. A large volume of documentary evidence has been tendered and we heard a large amount of oral evidence. We have also been provided with detailed and voluminous submissions. We have taken all evidence and submissions into account, however in the interests of reasonable economy and because we think that not all the material and arguments bear directly on the questions to be determined, we propose to refer only to those matters we regard as salient features of the case.
Onus of proof
15 In these proceedings we have applied the civil standard of proof. (See the remarks of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at pp 361-362; and also the comments of Branson J in Qantas Airways Limited v Gama [2008] FCAFC 69 at [122] to [138], cited with approval by the Appeal Panel in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 at [56].)
Ms Kesby’s case
16 Ms Kesby contends that from late 2004 to late 2005 she was the focus of Dr Nguyen–Dang’s predatory and sexual energy. She divides the period into two parts. The first, a period of ‘romantic fixation’ — the second, following his discovery that she had been massaging Dr Gunasekara — ‘persecutory’.
17 It is necessary to sketch in the evidence in some detail. In relation to the allegations of sex harassment we adopt the chronological order used by Ms Kesby in her Points of Claim.
18 According to Ms Kesby from early 2005, Dr Nguyen-Dang relentlessly pursued her creating an ‘atmosphere permeated by sexual tension’. She gave the following examples:
Constantly calling her at home and outside work hours
Spending excessive time in her office
Asking her to cook for himProviding her with gifts
19 Excessive phone calls Ms Kesby claims that from late 2004 Dr Nguyen-Dang rang her ‘constantly’ at work and home. On her account the calls mostly had some work related thread but were usually ‘silly banter’.
20 She claims that the calls persisted but tapered off after the ‘personal feelings’ conversation.
21 A statement prepared by Ms Kesby’s daughter was tendered in these proceedings. She stated that in late July 2005 she overheard her mother take a call from the doctor who seemed ‘keen on her’. Ms Kesby reassured her daughter that the situation was ‘under control’.
22 Dr Nguyen-Dang agreed that he often rang Ms Kesby but claimed the calls were work related. He pointed out that Ms Kesby had advertised her mobile phone number and encouraged practitioners to ring her if they thought a patient might be suitable for a clinical trial.
23 The first and only time Ms Kesby asked Dr Nguyen-Dang not to ring her was in December 2005. On her account she was obliged to take his calls as part of her job.
24 Spending excessive time in Ms Kesby’s office Ms Kesby claims that from late 2004, whenever Dr Nguyen-Dang was at the Hospital he spent ‘most of his time’ between patient procedures seeking her out. While she agrees they often spoke about work–related matters she claims Dr Nguyen-Dang regularly initiated discussion about non-work related topics.
25 Ms MacKinley and Professor Owensby’s secretary, Ms Julie Nelson testified that when at the Hospital, Dr Nguyen-Dang seemed to spend a lot of time in Ms Kesby’s office. According to Ms MacKinley, Dr Nguyen-Dang was constantly ‘seeking Ms Kesby out’.
26 According to Ms Nelson, the walls in the Cardiology Unit were ‘paper thin’ and she could hear what was said in Ms Kesby’s office, which was one office away. She testified that after observing over ‘a number of weeks’ Dr Nguyen-Dang spending ‘a lot of time’ in Ms Kesby’s office she said in an off-handed way — ‘You want to be careful people will be talking about you.’ According to Ms Nelson, Ms Kesby turned ‘quite serious’ and said ‘it wasn’t that way’, which Ms Nelson understood to be a reference to an affair or relationship. In a statement dated October 2007, Ms Nelson placed this conversation at around June 2005. In oral evidence given two years later she could not recall when the conversation took place. We think the recollection set out in the earlier statement is probably more reliable.
27 Registered Nurse, Ms Tanya David was summoned to give evidence at the request of Ms Kesby. Ms David had worked in the Cardiology Department throughout 2005. She described her contact with Dr Nguyen-Dang as ‘extensive’ and her contact with Ms Kesby as ‘passing’. She did not agree with the proposition that Dr Nguyen-Dang spent a lot of time with Ms Kesby:
I wouldn’t say that he spoke any more to [Ms Kesby] than he did to other people he spent — in between TOEs [transesophageal echocardiogram — ultrasound of the heart] — he spent a lot of time in the lab in the reporting room, in the research room, but not excessively in [Ms Kesby] room, no.
28 Around Christmas 2004, Ms Kesby mentioned to Nurse Unit manager, Ms Sue Worthy that Dr Nguyen-Dang seemed to ‘want to talk about nothing’. Ms Worthy said that she had had the same experience. Ms Worthy considered Dr Nguyen-Dang’s habit of dropping into her office between patients to be annoying but harmless and had told him to leave. She described Dr Nguyen-Dang as someone you needed to be direct with ‘… you sometimes had to practically hit him on the head with a brick’.
29 The consensus of opinion among those witnesses who worked with Dr Nguyen-Dang was that he liked to talk and joke around at work — ‘a lot’.
30 Involvement in personal life On Ms Kesby’s account from early 2005, Dr Nguyen-Dang ‘tried to involve himself in all aspects of my life’. She gave as examples requesting that she cook for him; giving her token gifts; offering to drop her car to the mechanics; arranging for her to be employed in the private rooms he shared with Dr Ford.
31 Dr Nguyen-Dang did not dispute giving Ms Kesby promotional gifts he received from pharmaceutical companies. He claimed he also gave them to other members of the hospital staff.
32 He denied offering to drive Ms Kesby to the car mechanics but agreed that he had passed on a car discount voucher received through the AMA.
33 He denied having asked Ms Kesby to cook for him.
The birthday greeting
34 According to Ms Kesby shortly before her birthday in 2005, Dr Nguyen-Dang announced that he knew the date on which it fell and this unsettled her. According to Dr Nguyen-Dang, he knew the date as Ms Kesby had mentioned that her birthday coincided with a patient’s surgical operation and had announced that she would be ‘celebrating it for the next week’.
35 According to Ms Kesby at 7.30am on her birthday she received a call from Dr Nguyen-Dang wishing her happy birthday. Dr Nguyen-Dang denied ringing Ms Kesby and claimed he sent a text message. In cross-examination, Ms Kesby conceded that Dr Nguyen-Dang’s phone records revealed that a text message had been sent from his mobile phone as claimed and there was no record of a phone call.
36 Dr Nguyen-Dang claimed he commonly sent SMS messages to colleagues on their birthday.
CLARITY dinner invitation
37 In June 2005 Professor Owensby was invited to speak at a drug company sponsored dinner to outline the results of the CLARITY drug trial. Dr Nguyen-Dang was also invited to attend.
38 On learning that Ms Kesby had not been invited Dr Nguyen-Dang spoke to Ms Nelson and asked her to contact the drug company representative and arrange an invitation. According to Ms Nelson, it was ‘most unusual’ for a nurse to be invited to a dinner of this type. Ms Nelson testified that she witnessed Dr Nguyen-Dang berate the drug company representative for not inviting Ms Kesby. Dr Nguyen-Dang agreed that he had spoken to the representative but denied berating her. He said he took up the issue because Ms Kesby appeared upset and in his opinion she was an important member of the team who should have been invited.
The ‘Bon voyage’ message
39 According to Ms Kesby, shortly before she was about to board a flight to Singapore in June 2005, Dr Nguyen-Dang rang her three times to wish her bon voyage. She claims she was forced to brush him off by saying she had to speak to her children.
40 Dr Nguyen-Dang claims he sent a text message but denies repeatedly phoning Ms Kesby. In cross-examination Ms Kesby conceded that Dr Nguyen-Dang’s claim was consistent with his phone records. On her account she had no recollection of having received a text message.
41 On questioning, Ms Kesby said she thought the messages revealed an ‘element of neurosis, anxiety’ on Dr Nguyen-Dang’s part.
42 According to Ms Kesby while in Singapore she concluded that Dr Nguyen-Dang had something more than a platonic interest in her and that it was necessary to talk to him about it, which she did so, on her return. She gave this account of the conversation:
JK: Dang …I think you might have developed feelings for me and if you have I need to tell you that I don’t feel that way towards you…You don’t have to talk about it if you don’t want but I need you to know that if I am part of your confusion over the difficulties you and your wife are experiencing you need to know I won’t go out with you even if you left your wife.
ND: Alright then…I do feel strongly about you … Ever since I met you … for about five years now.
ND:…You are way above all the other nurses in this place. You have so much talent and are far more intelligent than all of them …’
So you are in a relationship with someone?
JK: We are just friendly at work Dang. That is how I want to keep it.JK: No I finished a relationship in February … I am fine being alone until the right person comes along ... [not direct speech]
43 Dr Nguyen-Dang gives a different account. He conceded that when asked if he had a personal interest in Ms Kesby he said, ‘Yes’, because at first he thought she was joking. On his account after announcing that she would not be interested even if he left his wife, she said:
JK: Since I’ve been divorced, I have gone out with many different men … I am fine being alone
JK: Yes we are good friends.ND: [After a silence] We are good friends though?
44 It is common ground that prior to that conversation Dr Nguyen-Dang had never spoken to Ms Kesby about leaving his wife or ending his marriage.
45 According to Ms Kesby she confided in Ms Sheila McRae, a technician employed in Dr Nguyen-Dang’s private rooms, about this conversation. Ms McRae testified:
I cannot remember the exact words [said by Ms Kesby], but I do know that Dr Nguyen-Dang was undergoing family problems and was confused, and perhaps saw a little more in the friendship as regards just friendship than perhaps there was. I’m finding it difficult to verbalise, but I felt that – that he enjoyed [Ms Kesby’s] company very much.
46 Ms McRae testified that Dr Nguyen-Dang also spoke to her after the ‘personal feelings’ conversation:
Dr Nguyen-Dang accepted the conversation and said ‘If that’s the way it is, so be it’ and there was no feeling and there was no relationship…. but that [Ms Kesby] had spoken to him and said that there wasn’t one and I feel that he accepted that.
47 Dr Nguyen-Dang denied having that conversation.
48 When asked what she meant by the statement, ‘there was a little more in the friendship than perhaps there was’, Ms McRae explained:
Perhaps a little bit of – I would take as innocent not flirting, but ego – an ego trip. I didn’t feel it was flirting as in a sexual way, but an ego trip. It makes me feel good if someone flatters me type of thing. Both ways.
49 She described the relationship as ‘a two-way road’:
… I don’t think it was one to the other or the other to the other. I just thought that they seemed to get on really well and I think they both appreciated their friendship. ... I think it was a two-way street ...
50 In her opinion Dr Nguyen-Dang was ‘Fairly private. Fairly conservative. … prudish’. She considered that she and Dr Nguyen-Dang were close, they often discussed their respective families; he saw her as something of a ‘mother figure’.
51 According to Dr Nguyen-Dang following this conversation he tried to distance himself from Ms Kesby ‘for fear of any further misunderstandings’. In cross-examination he explained that he did this by not making jokes and non-work related calls. Ms Kesby agrees that the calls tapered off to an extent after this conversation.
52 According to Ms Kesby shortly after the ‘personal feelings’ conversation, Dr Nguyen-Dang approached her in her office, handed her a brochure advertising a drug company sponsored weekend at Jupiter’s Casino on the Gold Coast and asked if she was interested in attending. She gave this account of the conversation:
JK: Why would I want to do that [attend the conference] Dang?
JK: Why don’t you ask what your wife thinks Dang.ND: You don’t have to. You can go shopping while I go.
53 Ms Kesby says she was offended by this conversation as in her view she had made herself perfectly clear in the ‘personal feelings’ conversation.
54 Dr Nguyen-Dang disputes Ms Kesby’s account. He claims that he came across the brochure as Ms Kesby walked into his office. Noting that the Conference was to discuss a drug that had been the subject of a clinical trial conducted by the Hospital he thought it might interest Ms Kesby. He claims that he had no intention of attending and had planned to visit his family in Melbourne that weekend, as was his practice when not on call.
‘Home alone’ SMS exchange
55 According to Ms Kesby one evening after the Gold Coast invitation Dr Nguyen-Dang sent her a text message to the effect — ‘I am lonely and have nothing to do in this big house’. She responded ‘Read a book’. He replied ‘You don’t know how hard it is for me’.
56 Dr Nguyen-Dang gives a different account both in terms of when the exchange took place and the content of the messages. He claims that in early May Ms Kesby urged him to read an 80 page protocol for a drug trial which was about to be launched. Dr Nguyen-Dang claimed that in the early evening when he was half way through the document he had this SMS exchange with Ms Kesby:
JK: Have a glass of wine, it will help you finish.ND: Do I have to go through all 80 boring pages tonight?
57 He said he then sent Ms Kesby a message to the effect that he was off to play Badminton as he did every Wednesday night.
58 When taken to Dr Nguyen-Dang’s phone records Ms Kesby agreed that she had been mistaken and that this conversation pre-dated the ‘personal feelings’ conversation. She did not resile from her claims about the content of the messages.
Computer allegation
59 According to Ms Kesby in August or September 2005 Dr Nguyen-Dang purchased a new computer for the office and ‘jocular banter’ ensued. On her account, throughout the two weeks after the computer was installed Dr Nguyen-Dang repeatedly said: ‘I’ve bought you a computer what do I get?’ Ms Kesby claimed she made light of this and had replied, ‘A cup of tea’ or a comment to that effect.
60 It is common ground that on one occasion the following exchange took place in Ms Kesby’s office while Ms MacKinley was present:
JD: I’ve bought you a computer what do I get?
The three laughed.JK: Look if it is sex you are after Dang it will have to be with Sue [MacKinley].
61 Ms Kesby said she immediately felt uncomfortable and left the room. She claims that a few minutes later when alone in her office Dr Nguyen-Dang approached her and quietly said, ‘You said I could have sex with Sue but she’s not the one that I want’. Ms Kesby claimed that her ‘skin crawled’; she felt violated.
62 Dr Nguyen-Dang gives a very different account. He claims that it was a photocopier not a computer that had been purchased; the incident occurred in May or June not August or September; that he only once said, ‘What do I get?’. On his account when Ms Kesby had said, ‘Look if it is sex you are after…’ he and Ms MacKinley looked at each other in embarrassment and Ms Kesby basically ‘ran out of the room’. He denies later approaching Ms Kesby.
House of God
63 According to Ms Kesby, sometime in August possibly September 2005, Dr Nguyen-Dang lent her a copy of a book The House of God — which he described as ‘a masterpiece’. Ms Kesby found the book sexually explicit and offensive and returned it after reading a few pages.
64 In cross-examination she agreed that the incident could not have occurred in September as Dr Nguyen-Dang was out of the country during the first part of the month.
65 Dr Nguyen-Dang thought this conversation took place in about May or June 2005. On his account he had offered the book to Ms Kesby in the context of enjoying a joke from it with colleague, Nurse Janice Lum. Ms Lum testified that she could not recall the conversation and furthermore had not read the book.
Massage requests
66 On 13 September 2005 Dr Nguyen-Dang commenced work at the Hospital after returning from a conference in Stockholm. He claims his back was extremely sore on his return. It is common ground that he suffered from a chronic low back condition.
67 Over the following fortnight Dr Nguyen-Dang joked, sometimes with other staff, ‘You gave Athula [Gunasekara, the Registrar] massages what about me?’. On her account he told her that a nurse at another hospital was ‘looking after him’ and giving him massages — ‘I won’t tell you her name because you might know her’.
68 According to Ms Kesby, on Saturday 17 September when alone in her office she was approached by Dr Nguyen-Dang, who said in a ‘smooth and teasing manner’ — ‘You massage Athula what about me?’ She claimed that later that morning he rang three times saying, ‘there’s someone here who needs a massage’ later disclosing that it was Ms MacKinley.
69 Later that morning Dr Nguyen-Dang invited Ms Kesby to a staff lunch in his private rooms. She declined.
70 Dr Nguyen-Dang agrees joking with Ms Kesby about giving him a massage but denies saying he was being ‘looked after’ by another nurse. He does not dispute inviting Ms Kesby for lunch. On his account it was a staff lunch, a common practice on Saturdays. This claim is supported by Ms McRae.
71 According to Ms Kesby it is relevant to an understanding of this incident that in 2002 Dr Nguyen-Dang had started to rub her shoulders and she asked him to stop. On her account on one occasion he apparently stretched his fingers towards her breast. She also claims that on a number of occasions at his request, she had rubbed his shoulders. These claims are denied.
The massage incident
72 In early September 2005, Dr Gunasekara, injured his back and was in considerable pain. Apparently he had been unable to organise treatment because of work commitments. Ms Kesby organised for him to be seen by her brother, a physiotherapist in private practice. Following this consultation Ms Kesby gave Dr Gunasekara back massages and applied heat packs in the procedure room in the Cardiology Unit. The door was closed; Dr Gunasekara had his shirt off.
73 On 21 September 2005, Dr Nguyen-Dang claims he had been trying to find Ms Kesby. On his account seeing the door of the procedure room closed he thought an examination might have been underway and knocked. Ms Kesby invited him to enter. He said when he saw Ms Kesby massaging a shirtless Dr Gunasekara he was ‘extremely embarrassed’. On his account this was the first time he had ever encountered a nurse giving a doctor a massage with a shirt off within the Hospital.
74 According to Ms Kesby that afternoon Dr Nguyen-Dang complained of a sore back and later said ‘Where’s Julie I’ve come for my massage’.
75 Two days later Dr Nguyen-Dang rang Professor Owensby and reported the incident. Both agreed it was a serious matter and should be placed on the agenda of that morning’s Department meeting, which Dr Nguyen-Dang did not attend.
76 None of the witnesses who gave evidence in these proceedings suggested there was anything improper or sexual in the relationship between Ms Kesby and the Registrar. Professor Owensby’s opinion — that Ms Kesby’s actions although well intended, represented a serious error of judgement — reflected the consensus of opinion among those witnesses who gave evidence on this point.
77 Five days after the massage incident Dr Nguyen-Dang and Ms Kesby had a heated conversation. On Ms Kesby’s account Dr Nguyen-Dang:
Was ‘ropable’ — in both body language and tone — ‘leaning forward glaring at me and pointing his finger’
Questioned her about where on his body she had massaged Dr Gunasekara
Asked why she had massaged Dr Gunasekara and yet refused his [Dr Nguyen-Dang’s] requests
Said she should have been giving the massage in Dr Gunasekara’s bedroom
Became angry when she suggested he was jealous
Threatened never to speak to her again or assist her with trial work
Told her he had informed Professor Owensby of the conduct.Told her about a doctor and nurse in another hospital who had started a relationship which ended in an unwanted pregnancy
78 Dr Nguyen-Dang denied:
Asking for details about the massage
Making comments about her being single or calling her names.Threatening not to speak to Ms Kesby again
79 On his account towards the end of the conversation Ms Kesby became upset and left, telling him it was ‘none of his business’.
80 The following day Ms Kesby and Dr Nguyen-Dang had a further discussion. Again there is a conflict in the evidence. Both agree the conversation quickly became heated. Each contends it was the other who became extremely angry.
81 According to Ms Kesby:
Dr Nguyen-Dang said aggressively and loudly ‘Are you calm today because you were crazy yesterday!’
She told Dr Nguyen-Dang that if he was going to speak to Professor Owensby she would need to speak about his feelings for her and he needed to be prepared for that to become ‘public knowledge’ and that wife would hear about it
He responded by asking: ‘Are you threatening me?’
Dr Nguyen-Dang said her behaviour demonstrated ‘loose morals’.Dr Nguyen-Dang talked about Dr Gunasekara’s decision to accepted a position at Westmead
82 She claimed that Dr Nguyen-Dang approached her again later that morning and was ‘like a bull on a rampage’. On her account he said:
She had touched him in a suggestive way three times — in front of Kayla [Benstead —Dr Nguyen-Dang’s secretary] when handing him a Holter Report [a mechanism that monitors of heart rhythm]; on his fortieth birthday in Recovery, in front of nurse Tanya David ‘you pushed your breast into my hand; when we were alone in the reporting room and you were crying and upset, accusing me of not supporting research.’He did have feelings for her … he had a girlfriend now ... his wife is angry with him all the time
83 She claimed he went on to say in an aggressive manner:
She was just a nurse
She had been single for a long time
Imagine if the Mercury newspaper got hold of the story [about the massage]There are names for women like you
84 On her account after phoning Professor Owensby, Dr Nguyen-Dang ‘continued to rant’ and when asked was he prepared to guarantee that Dr Gunasekara’s career would not be affected he said ‘only if the behaviour stops and does not happen again’. According to Ms Kesby the conversation ended with Dr Nguyen-Dang saying he intended to take up the matter with Dr Ford, and discuss whether her employment in their rooms should continue.
85 Dr Nguyen-Dang says it was Ms Kesby who had threatened to go to the media. He claims that she:
Demanded that he apologise to her and Dr Gunasekara
Threatened to tell his wife and all members of the Department that he was ‘obsessed’ with her.Threatened to go to her union
86 Dr Nguyen-Dang testified that he believed that Ms Kesby was attempting to blackmail him and it was for that reason he accused her of having touched him inappropriately on three occasions. Neither Ms Benstead nor Ms David could recall the incident they were alleged to have witnessed.
87 In the first statement prepared for these proceedings (Exhibit D3) Dr Nguyen-Dang denied telling Ms Kesby that he had a girlfriend. In a supplementary statement (Exhibit D4) he admitted telling Ms Kesby he had a girlfriend but said this was untrue and he had only done so because she had threatened to tell his wife.
88 He claims that after this conversation, at Ms Kesby’s request, he met with Dr Gunasekara and reassured him that he would ‘not use the massage against him’ in his forthcoming annual assessment. Acting in his role as supervisor, Dr Nguyen-Dang provided Dr Gunasekara with a positive assessment in the annual assessment conducted shortly after the massage incident.
Ms Kesby resigns from Dr Nguyen-Dang’s private practice
89 In late September Ms Kesby wrote to Dr Ford tendering her resignation.
Meetings with Ms Worthy and Professor Owensby
90 In late September 2005, Professor Owensby told Ms Kesby that while no doubt well intentioned her actions in massaging the Registrar were open to being misconstrued and had been inappropriate. Ms Kesby told Professor Owensby that Dr Nguyen-Dang had raised the issue of the massages out of jealousy.
91 On 5 October 2005, Ms Kesby met with nursing supervisor, Ms Worthy. and told her that she was concerned that Dr Nguyen-Dang was ‘taking things out’ on the Registrar because of an attraction to her. She told Ms Worthy about Dr Nguyen-Dang’s frequent calls, the Gold Coast invitation and his reaction after he walked in on her massaging the Registrar. Ms Worthy said that this could raise questions of ‘sexual harassment’.
92 When told of the massage incident Ms Worthy expressed surprise and said that ‘at best it was an act of stupidity [on Ms Kesby’s part]’. She advised Ms Kesby to set out her version of events in writing.
93 In a letter prepared five days after this conversation, addressed to the Hospital’s Acting Operations Manager, Ms Nicole Sheppard, Ms Worthy set out her account of that conversation. She recorded that Ms Kesby had told her about Dr Nguyen-Dang’s frequent phone calls; that he had developed an obsession for her and that this had affected his work. She recorded Ms Kesby saying that after the massage incident Dr Nguyen-Dang ‘had been very angry ... but then he asked her why she ‘would not massage him.’
94 On 10 October 2005, Ms Sheppard and Ms Worthy met with Professor Owensby. Professor Owensby relayed that he had met with Ms Kesby who said that Dr Nguyen-Dang had made the complaint out of jealousy and that she did not want to take the matter any further. Ms Sheppard advised that Ms Kesby’s conduct would be investigated. Later that day, Ms Worthy contacted Ms Kesby and told her about what had been discussed at the meeting.
14 October letter of complaint
95 On 14 October 2005, Ms Kesby wrote to Dr Murthy and raised a number of concerns about Dr Nguyen-Dang including his mental health and stability. The letter was copied to Professor Owensby, Ms Sheppard, Ms Worthy and Dr Gunasekara. Ms Kesby wrote that Dr Nguyen-Dang was under stress in his personal life. She claimed that his behaviour over the past fortnight amounted to intimidation, harassment and bullying of her and the Registrar. In her opinion, Dr Nguyen-Dang’s ‘current degree of stability go beyond his interpersonal relationships’ and alleged that ‘patient incidents’ had occurred in the past that now ‘demand reappraisal’. She asked that Dr Nguyen-Dang’s ‘behaviour disturbances’ be investigated. In closing she stated that she had raised these concerns both for Dr Nguyen-Dang’s personal welfare as well as her right, and that of the Registrar, to ‘reasonable and professional interaction’ with him in the workplace.
96 Dr Murthy informed Dr Nguyen-Dang that a letter of complaint had been received and given to other staff members. The letter was provided to Dr Nguyen-Dang in mid-December 2005.
97 On 14 October Ms Kesby was summoned to a meeting with Ms Sheppard and Director of Nursing, Mr Robert Farrugia. According to Mr Farrugia he outlined the procedure for making complaints, the importance of maintaining confidentiality, and referred Ms Kesby to relevant policies. Ms Kesby denies being referred to any policy. Mr Farrugia also suggested that the letter might have defamed Dr Nguyen-Dang and urged her to consider retrieving it. She stated she was not prepared to do so.
Fact-finding meeting with Ms Kesby
98 On 26 October 2005 Ms Kesby was interviewed by Mr Ken English, Director, Human Resources and Public Relations for the South Eastern Sydney and Illawarra Area Health Service. The interview was attended by Mr Henry Kornacki then Acting General Manager, Northern Illawarra Group and Human Resources Manager and Ms Antonella Sassu, industrial officer who acted as scribe. Ms Kesby’s brother, attended in the role of a support person.
99 A copy of the hand written and typed minutes of that meeting was tendered in these proceedings. The minutes are detailed but not a verbatim transcript.
100 At the meeting a number of issues were discussed — Ms Kesby’s concern about Dr Nguyen-Dang’s mental health, his alleged ‘fixation’ on her and the mistreatment of the Registrar.
101 Ms Kesby is recorded as having said:
From October /November 2004 Dr Nguyen-Dang would often go into her office to chat and when she hinted she was busy this did not always work
From early 2005 Dr Nguyen-Dang rang her between two to five times a day, the calls were not always work related —not offensive but ‘unnecessary’
From April 2005 Dr Nguyen-Dang started to ring her on her mobile
The day she left for Singapore she received three non-work related calls from Dr Nguyen-Dang
She did not want to make a formal complaint or have any disciplinary action taken against Dr Nguyen-Dang but rather ‘wishes for [Dr Nguyen-Dang’s] behaviours to desist and to return to their previous working relationship’.After the ‘personal feelings’ conversation the calls ‘settled down’
102 There is no mention in the minutes of the computer or House of God allegations. Brief mention is made of a massage request made after Dr Nguyen-Dang walked in on the massage being given to the Registrar.
103 Ms Kesby was asked at that meeting to provide further details about her concerns in relation to the clinical issues involving Dr Nguyen-Dang. She stated that she did not wish to make a formal complaint but rather was raising her concerns ‘i.e. patient safety and [Dr Nguyen-Dang’s] mental health and stress’ to the attention of management for action.
104 When asked what she wanted from the process she stated:
Dr Nguyen-Dang’s behaviours to desist
Work to be harmonious again/workflow not to be interrupted
Dr Nguyen-Dang to behave towards her in a professional wayDr Nguyen-Dang’s concentration issues/stress to be dealt with
105 The minutes record that when asked if had she taken the issue to ‘Human Resources’ Ms Kesby said she had not as she felt they would ‘push the sexual harassment angle’. She stated that she wanted the issue addressed as ‘an expression of concern’ rather than an ‘accusation of sexual harassment’.
106 According to Mr Kornacki, Ms Kesby had said ‘I don’t think it’s sexual harassment but my concern is the frequency of the calls’. Ms Kesby denies saying this. That comment is not in the minutes.
Fact-finding meeting with Dr Nguyen-Dang
107 The following day Mr English interviewed Dr Nguyen-Dang. Mr Kornacki was again in attendance as was Ms Sassu and Mr Davey, acting Human Resources Manager, Southern Network. Union representative, Ms Victoria Hilley, attended as Dr Nguyen-Dang’s support person.
108 According to Dr Nguyen-Dang he did not receive a copy of the minutes of that meeting until he was interviewed by Ms Margaret Savage in April 2008. (In November 2007, Ms Savage, the manager of the Area Health Service’s Professional Practice Unit, was asked to review the Area Health Service’s handling of Ms Kesby’s grievances. A copy of her report dated 16 May 2008 was tendered in these proceedings.)
109 At that meeting Dr Nguyen-Dang requested a copy of Ms Kesby’s letter. Dr Nguyen-Dang was asked about his relationship with Ms Kesby; said he did not want to be alone with her; suggested a meeting ‘with everyone’ as a means of fixing things up. The minutes indicate that the clinical competencies issues were put to him and denied.
110 The minutes record Dr Nguyen-Dang saying:
…that he did have feelings for JK but nothing inappropriate, i.e. no kissing, no touching, no going out.
111 Messrs Kornacki and English each have a different understanding of what Dr Nguyen-Dang meant by that comment.
112 In a statement prepared for these proceedings Mr Kornacki stated that Dr Nguyen-Dang did not dispute that there had been a ‘romantic attraction’ but said he had not ‘done anything that was sexual harassment (in terms of touching or making comments of a sexual nature)’. He recalled Dr Nguyen-Dang saying that the two had just been friends, that he was lonely and they were both going through a difficult time, that there had been ‘mixed signals’ and he thought the feelings might have been mutual. In oral evidence Mr Kornacki elaborated:
… my recollection [of] that was at the time close friendship. For a period there I understood he was a bit uncertain as to perhaps what his feelings were for a short period, he was going through a difficult time, but certainly it was very clear even from - it wasn't really in dispute, the frequency of the calls, the nature of the calls, the contact ..(not transcribable).. yeah, a close friend.
113 He stated that when Dr Nguyen-Dang was asked whether he was willing to give a commitment that he would cease any advances towards Ms Kesby and work professionally, he gave that commitment.
114 In cross-examination Mr Kornacki accepted that Dr Nguyen-Dang did not use the word ‘romantic’. He recalled Dr Nguyen-Dang saying ‘for a short period he wasn’t sure what his feelings were’:
Dr Nguyen-Dang indicated that he was at the boundary, if you like, whether you would say it was romantic or advances as to the friendship or crossing a boundary or perhaps wanting perhaps a closer friendship with Ms Kesby. It was more in that context, that it was a sort of boundary issue, yes, have I crossed the boundary, yes, it was friendship, my feelings for a short period were mixed, wasn't quite - so, yeah, it's more in that context.
115 Mr English had a different recollection. On his account Dr Nguyen-Dang appeared ‘quite shocked’ by the allegations. He claimed that Dr Nguyen-Dang indicated that he had no sexual interest in Ms Kesby. He understood Dr Nguyen-Dang to have meant by the words, ‘he had feelings for Ms Kesby’:
KE: It was my view, because of his ethnicity that was the type of feelings they had, those people [Vietnamese] had for those - for their colleagues. Very soft, gentle, kind people that did not cause any trouble and that sort of stuff.
KE: Warm and fuzzy working relationships.Tribunal: … the use of the words “feelings” in that context you’re suggesting that it could be …Something more than just a close friendship between work colleagues.
116 Dr Nguyen-Dang told Ms Savage in April 2008 that at the fact-finding meeting he said that he did have ‘feelings for Ms Kesby but nothing inappropriate…’. He also stated that he disagreed that he had a ‘growing infatuation’ with Ms Kesby.
117 On 10 November 2005, Mr Kornacki met with Ms Kesby and concluded that the ‘interpersonal issues’ had been resolved. Following that meeting he referred the allegations about clinical matters to Dr Murthy. He advised Dr Murthy by email that:
The fact-finding investigation into the complaint had been concluded
He ‘believe[d] this now brings the resolution and closure to the interpersonal and industrial concerns’ raised in Ms Kesby’s letterMs Kesby had indicated that she was prepared to accede to Dr Nguyen-Dang’s request that she withdraw the letter
118 On 14 November 2005, Dr Murthy wrote to Ms Kesby asking her to provide further details of her concerns about Dr Nguyen-Dang’s patient care.
119 In mid-November Dr Nguyen-Dang approached Mr Kornacki and asked whether the letter had been withdrawn. He told Mr Kornacki that he was anxious that the matter be resolved so he could enjoy Christmas with his family.
120 On 22 November 2005, Ms Kesby wrote to Dr Murthy who was then on leave. She acknowledged resolution of some of her concerns. She requested a meeting with him, Professor Owensby and Dr Nguyen-Dang to discuss ‘all of her issues including patient safety’.
121 On 28 November 2005, Dr Gunasekara met with Messrs Kornacki and Davey. The minutes of that meeting record Dr Gunasekara saying he had been verbally abused by Dr Nguyen-Dang for about two weeks after the massage incident; believed that Dr Nguyen-Dang should be counselled; did not wish to make a formal complaint as he considered that his professional relationship had improved.
122 On the same day Ms Kesby wrote to Mr Kornacki and asked him to tell Dr Nguyen-Dang that she would like to meet with him on Dr Murthy’s return from annual leave in December. In closing she thanked Mr Kornacki for his time and the manner he had dealt with the issue and stated, ‘I do not however consider it to be closed’. In cross-examination Ms Kesby agreed that she told Mr Kornacki on 10 November 2005 that she considered the ‘interpersonal issues’ to be resolved. She explained that she had reviewed her position after Dr Gunasekara had told that Dr Nguyen-Dang had said she was ‘just a lonely and desperate woman’ as this indicated that he had not gained ‘insight’ into his issues. She claimed that another reason which caused her to change her mind was Mr Kornacki’s apparent unwillingness to raise the issues directly with Dr Nguyen-Dang.
123 On 8 December 2005, Mr Kornacki wrote to Ms Kesby and advised he had spoken to Dr Nguyen-Dang who was prepared to meet but only if given a copy of her letter of complaint. He stated that he intended to accede to Dr Nguyen-Dang’s request and pointed out that the concerns raised in the letter had not been made under the ‘Protected Disclosure provisions’ and Dr Nguyen-Dang would be able to obtain it under ‘Freedom-of-Information’. He advised that in Dr Murthy’s absence to late December the patient safety issues would be dealt with by Professor Rewell, South Eastern Sydney & Illawarra Area Health Service, and Ms Browbank.
124 On Saturday 10 December, Dr Nguyen-Dang rang Ms Kesby on her mobile. On her account he told her that Dr Murthy had not been involved in the investigation to date because he was a friend. She also claimed that he threatened to have her removed if she did not withdraw her complaint. That is denied. Dr Nguyen-Dang claimed that he told Ms Kesby he was confused as sometimes things between them were normal and at other times he was ignored.
125 On 12 December Ms Kesby told Dr Nguyen-Dang not to ring her again on her mobile.
126 On 13 December Ms Kesby reported the 10 December phone conversation to Mr Davey. It was an impromptu meeting. No minutes were taken. Following that meeting in an email to Mr Kornacki, Mr Davey stated that Ms Kesby believed the matter ‘not to be closed as Dr Nguyen-Dang is still calling her on her mobile at home’. He advised that Ms Kesby appeared willing to participate in mediation and keen to end the matter, ‘particularly after Dr Nguyen-Dang told her (according to her) that she will be transferred out if things don’t settle down’. According to Ms Kesby at this meeting she did not request mediation but she had stressed that she wanted Dr Nguyen-Dang’s bullying to stop.
Complaint letter released to Dr Nguyen-Dang
127 On 14 December 2005, Ms Kesby agreed that the complaint letter could be provided to Dr Nguyen-Dang. Two days later Dr Nguyen-Dang was provided with a copy of the letter. According to Ms Browbank, after reading the letter he ‘went off like a rocket’.
128 On 4 January 2006, Dr Nguyen-Dang wrote to Ms Browbank saying that he could not work with Ms Kesby because of the letter and ‘continued to hope’ that it would be withdrawn. He denied having acted in ‘an obsessive manner’ towards Ms Kesby. He stated that after being warned by Dr Ford on 4 October 2005 to ‘Be careful’ he ‘took great care not to do anything that would lead Nurse Kesby to believe (mistakenly) that I had any interest in her …’. He denied that his son’s illness had compromised his ability to function as a cardiologist. He asserted that his supervisors were pleased with his work and Ms Kesby was not in a position to make any assessment about his clinical abilities.
129 On 10 January 2006, Dr Nguyen-Dang informed Ms Browbank that he believed he could not work with Ms Kesby. He said he was concerned if he talked to her ‘she will say I’m harassing her … she could misinterpret things and I could get into trouble’.
130 On the same day Ms Kesby met with Ms Browbank and Professor Rewell. A number of issues were discussed: Dr Nguyen-Dang’s treatment of Ms Kesby; her concern about his psychological well-being and clinical competence. The minutes record that in answer to a question from Ms Browbank — ‘Apart from frequent phone calls – was Dr Nguyen-Dang’s conduct sexual?’, Ms Kesby replied he had asked her to attend a function on the Gold Coast. When cross-examined by Ms Kesby, Ms Browbank said:
What I am very clear, if you had at any stage indicated to me that you had been a victim of sexual harassment I would have acted on that statement. My recollection of my response to your statement that you were invited to go to a conference on the Gold Coast was not an unusual request…
131 At that meeting Ms Kesby was asked to provide evidence of Dr Nguyen-Dang’s alleged clinical incompetence. She gave four examples. She stated that ‘Dr Nguyen-Dang had an almost ‘fanatical obsession’ with her and that this obsession had contributed to these incidents.
132 The minutes record that it was agreed that Dr Rewell would speak to Dr Nguyen-Dang to see if he would agree to mediation and that the clinical issues raised would be further investigated.
133 Following that meeting Ms Kesby wrote a detailed letter to Ms Browbank detailing the matters she claimed had led her to believe that Dr Nguyen-Dang’s ‘stability’ had impacted on his clinical competence.
134 At a meeting in mid-January, Professor Owensby advised Ms Browbank and Professor Rewell that in his opinion there was no basis for referring Dr Nguyen-Dang to the Medical Board. Professor Owensby said that he was aware of some complications arising with patients but considered them to be ‘within the range’ of complications expected. He was not concerned these indicated any clinical issues that required action.
135 Professor Rewell claims that he had decided on the basis of the information provided by Professor Owensby and Ms Kesby that any further review of Dr Nguyen-Dang clinical performance issues was unwarranted.
136 By letter dated 7 March 2006 Ms Browbank advised Ms Kesby that:
The allegations of clinical incompetence had been investigated and ‘it was not felt that [Dr Nguyen-Dang’s] performance differed significantly from his peer group’.
She would be relocated to another area within the Hospital because:The complaint about her professional conduct vis a vis the massage incident would now be investigated.
The working relationship between you and Dr Nguyen Dang [has become] irreconcilable. You continue to state your belief Dr Nguyen Dang lacks insight into his problems and he believes you have unfairly libelled him to his employer, Unit Director, peers, and reports. The damaging effect on the Cardiac Diagnostics Department, and for both you and Dr Nguyen Dang leads me to the conclusion that I am unable to provide a safe working environment for either staff member whilst you are required to interact on a daily basis.
137 Ms Browbank went on to write:
With regard to the issues surrounding Dr Nguyen Dang's behaviour towards you, Mr Henry Kornacki and Mr Ken English investigated the perceived obsessive behaviour, intimidation, harassment and bullying of you by Dr Nguyen Dang on 26 October 2005. Mr Kornacki and Ms Sassu then met with you on 10 November 2005 to convey the findings of that investigation. Mr Kornacki forwarded a letter to you on 23 November 2005 confirming the outcome of the investigation and subsequent discussion with you.
138 On 8 March 2006, Ms Kesby met with Mr Farrugia. She expressed her dissatisfaction with the investigation into her concerns about Dr Nguyen-Dang. On his account when he asked Ms Kesby to particularise her concerns she told him about Dr Nguyen-Dang’s romantic fixation on her and habit of ringing her constantly. Ms Kesby disagrees with this account and claims in effect that she raised with Mr Farrugia all of the allegations contained in the complaint to the Board.
Assessment of the evidence
139 The assessment of the evidence in this matter is made difficult because of, among other things, the divergent accounts given by the protagonists and the dearth of independent evidence.
140 In assessing the relative credibility of the versions each party has given we have taken into account factors such as the inherent consistency of the stories given, or the lack of it; the consistency of the version given with undisputed or incontrovertible facts; the consistency of the version with the evidence of other independent witnesses; the inherent probability or improbability of the evidence; the willingness of the parties to make reasonable concessions and other aspects of their demeanours during their evidence.
141 It is important to emphasise, however, that we have not made our assessment on the basis of demeanour evidence alone. Given the nature of the case, the length of time since the alleged events took place, the lengthy time the parties have had to prepare their cases, the emotive quality of the complaint (and much of the evidence), that would be an inadequate basis for the determination of highly contentious evidence.
142 ‘Personal feelings’ conversation A critical factual issue in dispute is whether as alleged Dr Nguyen-Dang admitted to having ‘feelings’ for Ms Kesby. This is relevant not because, if accepted, it establishes sexual harassment but because it goes to credit. Dr Nguyen-Dang has throughout these proceedings denied any romantic interest in Ms Kesby.
143 There is much common ground about what was said in the course of this conversation the main difference being whether Dr Nguyen-Dang admitted to an interest in Ms Kesby and not in the glib and joking way he admitted to.
144 Having carefully considered all of the evidence we prefer Ms Kesby’s account of that conversation for these reasons.
145 First, Ms Kesby’s account is corroborated by Dr Nguyen-Dang’s technician. Ms McRae gave clear evidence of being told by Dr Nguyen-Dang about the conversation and that he appeared to accept that his feelings were not reciprocated. It was plain from her evidence that she had not ‘taken sides’ and remained very fond of Dr Nguyen-Dang, finding for example, his reference to her as a ‘silly old woman’ endearing. She impressed us as an honest, reliable and frank witness who gave her evidence in a very straightforward manner. We are satisfied that her evidence can be safely accepted.
146 Second, Ms Kesby’s account of the conversation is consistent with the complaint evidence given by Ms McRae.
147 Third, the alleged admission is consistent with the statement attributed to Dr Nguyen-Dang in the minutes of the fact-finding meeting — ‘he did have feelings for JK’. We accept that he did not sight these minutes until recently and draw no adverse inference from his failure to raise the purported inaccuracy. While Messrs English and Kornacki differ about what they understood Dr Nguyen-Dang to have meant by those words, both recall him saying them. We prefer Mr Kornacki’s account — it is consistent with what he recorded in a statement prepared at the request of the Anti–Discrimination Board in late 2006 (Exhibit B, p 112). While Dr Nguyen-Dang’s first language is not English we find it unlikely, that he thought that use of the word ‘feelings’ in that context conveyed simply ‘platonic’ feelings.
148 Fourth, Dr Nguyen-Dang’s admission is consistent with his claim made in the heated conversation with Ms Kesby after the massage incident — that he had a girlfriend. If, as claimed he had not admitted to having feelings for Ms Kesby, it is implausible that he would have used the (untruthful) girlfriend revelation to hurt her.
149 Fifth, the discrepancies between the two statements prepared by Dr Nguyen-Dang for these proceedings, has not been adequately explained. In his first statement he denied telling Ms Kesby that he had a girlfriend; in the supplementary statement he conceded he did. While he has explained why he lied to Ms Kesby about having a girlfriend ¯ because he felt he was being blackmailed ¯ he has not explained why in his first statement he gave an untruthful account to the Tribunal.
150 In addition, in both statements when referring to the three touching incidents Dr Nguyen-Dang failed to mention as he did in oral evidence that he was ‘uncertain’ about their nature and thought it probable that they had been innocent.
151 Reliability of Ms Kesby’s evidence It is apparent from a review of Ms Kesby’s evidence that her recollection of dates and detail is not altogether reliable. For example when presented with Dr Nguyen-Dang’s phone records she conceded that she had been mistaken about the timing of the ‘Home Alone’ text incident and not receiving text messages from Dr Nguyen-Dang on her birthday or before leaving for overseas.
152 More troubling is Ms Kesby’s failure to disclose until some 12 months after first raising concerns about Dr Nguyen-Dang, some of the more serious allegations on which she now relies.
153 It is argued for Dr Nguyen-Dang that it is relevant that no complaint or allegation of sexual harassment was made until after he reported the massage incident. The Hospital goes further and contends that Ms Kesby’s motives for making the complaint on 14 October 2005 (which it asserts is not a complaint of sex harassment) make it plain that she only decided to raise any allegation about Dr Nguyen-Dang after her own conduct was questioned.
154 Ms Kesby claims that initially she did not raise her concerns because she felt she had things ‘under control’ and it was not until the massage incident that she realised the full extent of Dr Nguyen-Dang’s ‘fixation’ on her. She claimed that after that incident she and the Registrar became the target of bullying and harassment and this, coupled with Dr Nguyen-Dang’s obvious distress at work and inability to cope, led her to conclude after discussing the matter with her brother, a medical practitioner, that she had a responsibility to bring her concerns to the attention of Hospital management.
155 This however does not explain why Ms Kesby disclosed some incidents but not others in the many meetings with Hospital management after the massage incident was reported. The computer allegation provides a stark example. In the complaint lodged with the Board, Ms Kesby claimed that after she said ‘… if its sex you want it’ll have to be Sue [MacKinley]’, Dr Nguyen-Dang approached her while she was alone in her office and said ‘… but [Ms MacKinley is] not the one that I want’. Ms Kesby made no mention of this in the meeting with Ms Worthy in early October, the fact-finding meeting held two weeks later or the meeting with Ms Browbank in January 2006. The alleged statement — ‘You said I could have sex with Sue …’ would indicate a marked escalation in Dr Nguyen-Dang’s overtures towards her. Given its significance, commonsense would suggest that it would have been mentioned in at least one of the meetings.
156 Ms Kesby’s reluctance to pursue a formal complaint against Dr Nguyen-Dang does not in our view adequately explain why she failed to disclose the above and other allegations until making her complaint to the Board. The October fact-finding meeting reveals that she showed no reluctance in disclosing details of other conduct that she asserted provided evidence of Dr Nguyen-Dang’s ‘fixation’ — such as his practice of phoning her constantly.
157 In the absence of a satisfactory explanation as to why some conduct was not reported to Hospital management we have taken the approach that where Ms Kesby’s account conflicts with that given by Dr Nguyen-Dang and is uncorroborated, we could not be satisfied to the requisite standard that her version of events occurred. In reaching that conclusion we have also taken into account our concerns about the reliability of Dr Nguyen-Dang’s evidence as recorded above.
158 It is trite to observe that human memory is faulty and an individual’s ability to recall certain events can be affected by a number of factors. That Ms Kesby did not disclose to Hospital management all of the allegations made to the Board does not establish that she is an untruthful witness but points to the need to exercise care in accepting her uncorroborated evidence.
255 To engage s 50 of the Act there is no requirement as the Hospital seems to suggest that a ‘formal complaint’ be made or that the complainant request that action be taken. It is enough that it is ‘alleged that the discriminator … has committed an act which, whether or not the allegation so states, would amount to a contravention of the Act’: s 50(1)(c).
256 We are satisfied that on or shortly after 14 October 2005, the Hospital’s managers involved in Ms Kesby’s complaint were aware that she had made an allegation of sex harassment.
Failure to adequately investigate the complaint
257 Subjected to a detriment? Ms Kesby contends that the Hospital failed to properly investigate her ‘complaints’ and in so doing failed to apply its own policies. These policies as we understand it include, NSW Health ‘Disciplinary Process in NSW Health — A Framework for Managing’ published 27 January 2005. Furthermore she contends that her complaint was handled in a ‘biased and limited way’. In respect of this allegation we understand Ms Kesby to be referring not only to the allegation of harassment but that relating to Dr Nguyen-Dang’s mental health and clinical competence.
258 The first issue to be determined is whether, as asserted by Ms Kesby, the Hospital failed to ‘properly’ investigate her complaints.
259 The Hospital contends that all complaints were properly investigated and Ms Kesby’s real grievance is that she did not agree with the outcome of the investigations. Furthermore it argues that she has not established that any so-called ‘failed’ investigation subjected her to a detriment.
260 Allegations of clinical incompetence It is unclear to us on what basis it is contended that a ‘proper investigation’ was not carried out in respect of these allegations or that the Hospital’s investigators were biased. Ms Kesby was invited to particularise her concerns; they were examined and ultimately found not to be substantiated. In large part that investigation was carried out by Professor Owensby. The evidence does not indicate that he was either biased against Ms Kesby or dismissive of her opinions. His evidence made plain that he held Ms Kesby in high regard. That is consistent with his attempt to persuade Ms Browbank not to remove her from the Cardiology Unit.
261 Inter-personal allegations We do not accept the Hospital’s contention that by November 2005, the ‘inter-personal’ issues had been resolved and the only outstanding matter was whether a mediation style meeting should be held between Dr Nguyen-Dang and Ms Kesby. While Ms Kesby made clear she did want a formal investigation conducted, she did not withdraw or, as claimed by the Hospital, deny the allegations. While initially she indicated she was prepared to withdraw the letter, she later reversed that decision. By November 2005 the Hospital had taken some steps to investigate the ‘inter-personal allegations’ by among other things, interviewing Ms Kesby, Dr Nguyen-Dang and the Registrar, however no formal findings were made or recorded. When it became apparent that the ‘inter-personal’ issues would not be resolved once Dr Nguyen-Dang announced he would not participate in a mediation, the investigation was not reopened and no further action taken.
262 The Hospital’s contention that the issues were resolved by mid-December also ignores the fresh allegations made by Ms Kesby to Mr Davey in early December and to Ms Browbank and Professor Rewell in the meeting in January 2006. During the latter she repeated her concern that the interpersonal issues had not been ‘fully addressed’. Ms Browbank acknowledged that Ms Kesby’s claim that she was mistreated by Dr Nguyen-Dang after the massage incident may ‘raise issues of harassment and the human resources component of the matter may need to be revisited’. There is no evidence that this occurred.
263 Ms Kesby’s claim that her allegation of harassment, including sex harassment, was not ‘properly’ investigated requires the identification of what in the circumstances might constitute a ‘proper’ or ‘adequate’ investigation. It goes without saying that what constitutes a proper investigation is inherently subjective and will depend on the circumstances of each case. As a minimum in our view an investigation of a complaint of sex harassment in the workplace would require inviting the alleged victim to particularise the offending conduct; interviewing relevant parties including any third parties; making findings and, if the allegations were found proven, taking appropriate action. Measured against these indicia in our view the ‘investigation’ was demonstrably inadequate — a view shared by Ms Savage after reviewing the handling of Ms Kesby’s complaint.
264 We find that the investigation into Ms Kesby’s allegations of mistreatment by Dr Nguyen-Dang, which includes the allegation of sex harassment, was inadequate and as a consequence Ms Kesby was subjected to a detriment.
265 On the grounds of? Ms Kesby must establish that a real reason, though not necessarily the main or dominant reason, for the Hospital’s failure to adequately investigate her complaint of harassment, including sex harassment, was because she had made a relevant allegation.
266 It is apparent that initially one of the reasons the Hospital failed to conduct an ‘orthodox’ investigation was because that was what Ms Kesby had requested. She is recorded as having said in the fact-finding meeting in October 2006:
She did not want to make a formal complaint or have any disciplinary action taken against Dr Nguyen-Dang but rather ‘wishes for [Dr Nguyen-Dang’s] behaviours to desist and to return to their previous working relationship’
She wanted to ensure that this is addressed with Dr Nguyen-Dang as an expression of concern…rather than an accusation of sexual harassmentShe did not want to push the sexual harassment angle
267 Ms Kesby remained optimistic that the matter could be resolved by mediation even after Dr Nguyen-Dang’s announcement that he was unwilling to participate in mediation. At the meeting with Hospital management in early January when asked how she would like to progress the matter she said:
She wanted to see Dr Nguyen-Dang supported throughout this incident
She felt she had done what she needed to do and that a conversation with her and Dr Nguyen-Dang would solve a lot of issues.He needs to be aware of personal boundaries
268 When advised that she would be relocated, Ms Kesby protested that her issues had not been dealt with. Even at this point it is unclear apart from not being relocated what action she wanted taken in respect of the handling of, or investigation into, those ‘issues’. (See for example her letter to Mr Farrugia dated 21 March 2006)
269 It is apparent that by early 2006 there was a degree of frustration on the part of the Hospital managers then involved in dealing with Ms Kesby’s allegations. Ms Browbank for example, believed that Ms Kesby was ‘moving the goals posts’ and that ‘every time we came close to…closure a new issue came up’. As far as Ms Browbank was concerned by early 2006 the allegations had been ‘dealt with’.
270 It seems to us that a number of factors played a role in determining the course the investigation into the ‘interpersonal issues’ was to take. These included Ms Kesby’s initial insistence that a formal investigation not be undertaken; her failure to particularise the offending conduct; her and the Hospital’s hope that the matter was capable of resolution by mediation and ultimately when it became apparent that this was not to be the case, the Hospital’s assessment that the time had come to ‘move on’.
271 In our view the failure by the Hospital to reassess the status of the harassment allegations once it became apparent that that mediation was no longer an option, constituted an error of judgement. The factors set out above played some role for that inaction. Also relevant in our view was the fact that a large number of people had some involvement with the handling of Ms Kesby’s allegations for relatively short periods of time. No one person was actively involved in handling the collection of allegations made by Ms Kesby, from the time they were made until it was decided that she was to be relocated. In our view that accounts in part for the mistaken assessment made in early 2006 that the investigation into the complaints of harassment had been ‘resolved’.
272 It goes without saying that there was a link between the initiating allegation and the subsequent investigation, in that, had it not been for the former the need for the later would not have arisen. However we are not satisfied that one of the real reasons the Hospital failed to conduct an adequate investigation or reassess the situation after it became clear that mediation was no longer an option was because Ms Kesby had made a relevant allegation.
273 For these reasons this part of the claim of victimisation is dismissed.
Decision to remove Ms Kesby from her position within the Cardiology Unit
274 Some of the factual background to this allegation has already been touched on in these Reasons but for convenience is restated.
275 By letter dated 7 March 2006 Ms Browbank advised Ms Kesby that she would be relocated to another area within the Hospital because:
With regard to the issues surrounding Dr Nguyen Dang's behaviour towards you, Mr Henry Kornacki and Mr Ken English investigated the perceived obsessive behaviour, intimidation, harassment and bullying of you by Dr Nguyen Dang on 26 October 2005. Mr Kornacki and Ms Sassu then met with you on 10 November 2005 to convey the findings of that investigation. Mr Kornacki forwarded a letter to you on 23 November 2005 confirming the outcome of the investigation and subsequent discussion with you.
The working relationship between you and Dr Nguyen Dang [has become] irreconcilable. You continue to state your belief Dr Nguyen Dang lacks insight into his problems and he believes you have unfairly libelled him to his employer, Unit Director, peers, and reports. The damaging effect on the Cardiac Diagnostics Department, and for both you and Dr Nguyen Dang leads me to the conclusion that I am unable to provide a safe working environment for either staff member whilst you are required to interact on a daily basis.
…
276 On 8 March 2006, Ms Kesby met with Mr Farrugia. She expressed her dissatisfaction with the investigation into her concerns about Dr Nguyen-Dang. On his account when he asked Ms Kesby to outline her concerns she told him about Dr Nguyen-Dang’s habit of constantly ringing her and his romantic fixation on her. Ms Kesby disagrees with this account and claims in effect that she raised all of the allegations contained in the complaint to the Board.
277 The Hospital claims that from mid-January 2006, Ms Browbank worked with Ms Sheppard and others to locate a suitable position for Ms Kesby commensurate with her skills and level of remuneration. A number of meetings were held. Ms Kesby disputes the extent to which a genuine effort was made to find her an alternative position and that those proposed were similar in status and/or remuneration to her position. Nonetheless she does concedes that throughout this period she insisted that she not be relocated and made no real attempt to find an alternative position.
278 In early May 2006 the Nurses Association met with Hospital management in an attempt to broker a settlement. The Association proposed an arrangement under which Ms Kesby could remain in the Cardiology Unit and not be rostered on days Dr Nguyen-Dang was the only cardiologist on duty. Professor Owensby intervened on Ms Kesby’s behalf and urged Ms Browbank to reconsider her decision. He undertook to ensure that ‘every effort would be made’ to minimise contact between Ms Kesby and Dr Nguyen-Dang. He proposed a detailed roster arrangement which he believed would achieve this end. He argued that her return to the Department was critical if the Hospital’s cardiology research activities were to continue.
279 Ms Browbank rejected that proposal and advised Mr Davey and Ms Sheppard that Professor Owensby ‘had been told by me before … nothing to do with him … we need to move on’.
280 On 30 June 2006, Ms Kesby’s contract with the Hospital expired. She continued to be employed by the Hospital. When it became apparent that an agreement would not be reached she concluded that she had no option but to resign. On 16 August 2006, Ms Kesby wrote to Mr Davey tendering her resignation.
281 A detriment? The Hospital contends that on an objective assessment the decision to relocate Ms Kesby did not constitute a detriment. It argues that it sought to accommodate her preference for where she wanted to work and the type of work she wanted to perform and to maintain her level of remuneration.
282 We do not agree. Ms Kesby had held her position within the Cardiology Unit for a number of years. She had developed expertise in a specialised area of medicine and was highly regarded in her role. While employed on an annual contract she had a reasonable expectation that her contract would be renewed.
283 We are satisfied that by deciding to relocate the Hospital subjected Ms Kesby to a detriment.
284 On the ground of? It falls to Ms Kesby to establish that one of the ‘real’ reasons for the decision to relocate her was because she had made a complaint of sex harassment.
285 Ms Browbank made the decision to relocate Ms Kesby. It seems to us that the driving factor behind Ms Browbank’s decision was the not unreasonable assessment that the relationship between Dr Nguyen-Dang and Ms Kesby was irreconcilable. A stalemate had developed. She rejected the compromise proposal endorsed by the Nurses Association and Professor Owensby because in her view it was impractical and would require supervision. Her patience had worn thin and she was no longer prepared to expend resources on what by then she considered to be an intractable dispute. She decided that one party had to go and made the cold assessment that Dr Nguyen-Dang’s services were more valuable to the Department than Ms Kesby’s.
286 In our view the manner in which Ms Kesby pursued her allegations against Dr Nguyen-Dang including those concerning his clinical competence and mental health, was a factor in Ms Browbank’s ultimate decision to relocate Ms Kesby.
287 We are not satisfied that one of the real reasons Ms Browbank decided to relocate Ms Kesby was because she had made a relevant allegation.
288 Accordingly this part of the complaint of victimisation is not substantiated.
Summary
289 The complaint of victimisation against the Hospital is dismissed.
COMPLAINT OF SEX DISCRIMINATION
290 Ms Kesby contends that the Hospital’s failure to properly investigate her complaint and its decision to remove her from her position within the Cardiology Unit constitutes unlawful discrimination on the ground of sex, (s 25(2) of the Act).
291 To succeed in her complaint which is cast as an allegation of ‘direct discrimination’ (s 24(1)(a) of the Act), Ms Kesby must, establish, on the balance of probabilities:
First, that the offending conduct fell within one or more of the substantive provisions of the Act (s 25(2))
Third, that one of the reasons for any less favourable treatment was on the ground of her sex or a characteristic of her sex.Second, that she was treated less favourably than a man in the same circumstances or circumstances which are not materially different to her circumstances (less favourable treatment)
292 A detriment? For the reasons set out above we accept that the conduct complained of in respect of each allegation constitutes ‘a detriment’ for the purpose of s 25(2)(c) of the Act.
293 Causation Ms Kesby relies on the ‘extension’ provision contained in s 24(1A) of the Act. It provides:
- (1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
294 Ms Kesby nominates as a characteristic generally imputed to women — ‘the capacity to be the attention of a male’s eye’ and ‘the capacity to pursue a male sexually’. She contends that one of the reasons the Hospital conducted an inadequate investigation into her allegations of harassment was because of these sex based views.
295 Even if accepted that the characteristic relied upon by Ms Kesby ‘appertains generally’ to, or is ‘imputed’ to women, there is no evidence that any of the Hospital officers who played a role in the investigation into and management of her complaints held such views and if they did, that it played any role in their decision making.
296 Nor in our opinion does it support a finding that one of the reasons the Hospital’s managers acted as they did was because Ms Kesby is a woman.
297 Given this finding it is not necessary to consider whether less favourable treatment is established and accordingly this part of the complaint must be dismissed.
Decision to remove Ms Kesby from her position within the Cardiology Unit
298 Causation Ms Kesby also relies on the above mentioned characteristic in respect of this allegation.
299 There is no direct evidence that one of the reasons Ms Browbank decided to relocate Ms Kesby was because she was a woman or that she held ‘sex based views’. Nor in our view does the evidence support that inference being drawn.
300 Given this finding it is not necessary to consider whether less favourable treatment is established and accordingly this part of the complaint must be dismissed.
Summary
1. The complaint of unlawful discrimination on the grounds of sex made against the Second Respondent is dismissed.
2. The complaints of victimisation made against the First and Second Respondents are dismissed.
3. The complaint of sex harassment made against the First Respondent is dismissed.
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