Azar and Ritchie [2005] NSWIRComm 1124

Industrial Relations Commission of New South Wales

CITATION: Azar and Ritchie [2005] NSWIRComm 1124

APPLICANT: Nayla Azar PARTIES: RESPONDENT: Dr James Ritchie

FILE NUMBER(S): IRC7505 of 2003

CORAM: Patterson C

Unfair Dismissal - medical secretary – allegations of "serial" sexual harassment/abuse - denial.

CATCHWORDS: Held: Allegations unsupported by the evidence – serious and wilful misconduct justifying summary dismissal. Application for relief instituted without reasonable cause – vexatious and mischievous - dismissed. Observations as to costs.

Industrial Relations Act 1996 LEGISLATION CITED: Crimes Act s.100A

HEARING DATES: 06/17/2004; 06/18/2004

DATE OF JUDGMENT: 08/04/2005

APPLICANT Applicant appeared in person

LEGAL REPRESENTATIVES: RESPONDENT Tress Cox Lawyers A. Gee T. Unsworth

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: COMMISSIONER PATTERSON

4 August 2005

Matter No IRC 7505 of 2003

Nayla Azar and Dr James Ritchie

Application by Nayla Azar re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 1124

1 This application for relief was filed by Ms Nayla Azar following termination from her position as "medical secretary" to the respondent, Dr James Ritchie. On Workers' Compensation leave at the time, she received three weeks' pay in lieu of notice. 2 Further to a failed romantic liaison between them Ms Azar had demanded payment of $50,000 in consideration that she not report a spread of "severe" events as to his alleged "serial" sexual harassment, attempted rape, professional misconduct/malpractice and other misdeeds across a band of statutory authorities from which she would otherwise seek to obtain "justice" for the indignities and trauma which "destroyed" her "life". 3 Claiming to have suffered the indignities of sexual "harassment" from the outset of her employment, and "sexual abuse" throughout and beyond their affair, Ms Azar describes this as escalating from suggestive remarks about her clothing, to unwanted advances and fondling leading to their becoming intimate. 4 Despite her claimed early rejection of his alleged overtures the two eventually formed a passionate relationship which continued for several months during which he purchased her an "engagement" ring. 5 After eventually informing his wife of the affair Dr Ritchie announced to Ms Azar that the marriage had rekindled and he would not be separating and moving in with her pursuant to his alleged "promises" and her expectations. 6 Ms Azar then embarked upon a curious campaign designed to restore their personal relationship whilst, at the same time, seeking to preserve her employment, this generating some nasty conflicts with Dr Ritchie's wife. 7 When finally convinced that she had been betrayed by him, at the behest of his wife in no small part, she then charted a rancorous course designed to stain his reputation and career as a medical specialist and possibly lead to prosecution and arrest whilst pressing her demand for compensation and/or restitution – and still expecting to preserve her employment. 8 Now claiming the affair to have been "forced upon" her by deception, culminating in "rape" after it floundered, and the affair itself not ever being one of consensuality, Ms Azar is seeking maximum compensatory relief, payment for outstanding wages and entitlements, with legal costs. Although her application is filed pursuant to s.84 she also makes oblique reference to relief otherwise available under s.99. 9 Dr Ritchie openly admits to a consensual relationship, strenuously denies her allegations of sexual exploitation and rape, denies the existence of any outstanding entitlements, describes the balance of her claims reported to various authorities as false and accuses her of "blackmail" and defamation. 10 Filed on 31 December, 2003 the primary matter of "unfair" dismissal was incapable of effective conciliation and proceeded to Hearing over three days in June and August 2004 to be concluded by final submissions in writing in October and November. Certain of the other matters involving so-called "outstanding entitlements" were settled in part without admission of liability. Regrettably, publication of this Decision has been unavoidably delayed due to a protracted and continuing disability concerning myself. THE HEARING 11 Although she had the benefit of legal advice and representation in the period leading up to this matter first proceeding, for which she incurred an unusual expense of $11162, Ms Azar elected to represent herself. 12 Apparently no complete stranger to the processes of this Commission - having made two prior applications for relief in respect to two earlier employers - she had, most recently, appeared for a short time as agent for clients of Employment Help Services after she had approached them for assistance in this matter. 13 Mr A. Gee, solicitor, appeared for Dr Ritchie. THE EVIDENCE 14 Specialising in General and Laparoscopic Surgery Dr Ritchie's practice is spread over two base locations, Macquarie Street Sydney and Eastwood, with substantial visitation and surgical commitments at certain hospitals across Sydney and the inner metropolitan area. 15 Following the "sudden" departure of his former medical secretary from the Eastwood location due to "illness," according to him, Ms Azar had presented herself as a person of longstanding experience in such a role and filled the vacancy in September 2002. Her duties would include the scheduling of appointments, telephone duties, audio typing, hospital bookings, banking, bookkeeping and assisting with minor surgery. Installed within a medical centre complex she was the sole employee at his Eastwood surgery with Dr Ritchie generally attending there for a full (extended) day on Wednesday in each week and for a half day on other selected mornings. 16 Initially paid a salary of $42,000 per annum this was raised to $47,372 in June 2003 following a praiseworthy assessment (written by her) and signed by Dr Ritchie in respect to her performance and commitment to the job. 17 During the period of Ms Azar's employment, fifteen months, the two had developed a deeply passionate romantic liaison which was constantly patterned by a myriad impromptu expressions of affection and "love" flowing between them by telephone, "e-cards," emails, handwritten notes, SMS, his jottings in her business diary with other messages she had interspersed within his patients' daily appointment/procedure schedules. She diarised "everything" she claims to have happened between them, what was said, what was done, in addition to filing/recording every message from him whatever its form or source. 18 He believes the "initiating factor" to their personal relationship was one occasion when he called Ms Azar from the United States in February, 2003. For the first time she had addressed him by his christian name, spoke to him in a "loving way" and said "I miss you James." 19 Upon his return "there were flowers ... a loving card ... followed by more affectionate messages, affectionate actions and it built up to a point where I believed we should sit down and talk." He had marital problems at the time and believed the state of his marriage as "probably defunct." The Affair 20 Following approximately eight months in which she claims to have resisted his attentions their relationship is variously described as having become more "affectionate" by early May 2003 when Dr Ritchie invited Ms Azar to close the surgery in the afternoon and meet him (for their "talk") at the Sydney Rowing Club, which he understood to be one of her favoured locations. 21 A momentous occasion, it seems – from either view of the evidence – with each sharing their respective personal histories, interests and aspirations whilst holding hands with views across the water as this attraction for each other continued to ferment. 22 From his own description of an unhappy marriage situation Ms Azar understood her employer, whilst sharing the same residence as his wife, to have been effectively estranged. 23 There is no denial that he had become highly aroused by the applicant at this time. However, she states her reaction to his progressive attentions as being wary in the absence of total "commitment," recalling that she had earlier suffered "ongoing" sexual harassment over a period of "two" years from a previous employer (named), also a medical practitioner. She had, then, remained silent in the interests of preserving her employment. 24 Also, she had told Dr Ritchie during their meeting, and this Commission later, of her own marriage breakdown when her ex-husband, yet another medical practitioner, had been "jailed for sexual assault" upon patients and staff and that he was "being charged with giving scripts for narcotics to patients." 25 As they departed from the Club Dr Ritchie states "we embraced and kissed passionately" in the car park for up to an hour - about which she now complains. 26 The relationship quickly intensified after they met again for dinner on the following evening when, according to Dr Ritchie, she "suggested that we return to her flat ... took me to the bedroom where we had intercourse." 27 In the days and evenings which followed, until late August, the two regularly spent time together with he attending her home at nights and on weekends for mutual satisfaction and comfort. According to Dr Ritchie "in (those) months we enjoyed a very passionate relationship where we had sexual intercourse frequently ... we often left affectionate messages for each other ...". 28 The two had seriously contemplated a future together, according to the applicant, which was enhanced by discussions of their co-habiting, his/their (?) purchase of a common residence closer to the surgery, marriage and their desire to have a child. He is 60 years of age and she is 42. Although he had remained married for 36 years, she believed her endeavour for permanent attachment was consecrated by his presentation of an "engagement" ring which, she states, "formalised his commitment." 29 Dr Ritchie describes the jewellery purchase as one which was thrust upon him without notice as he arrived at her residence to drive Ms Azar to Sydney Airport. She was travelling to Melbourne to visit family on 9 June for the Queen's Birthday holiday weekend and demanded some immediate confirmation of his "commitment," such as a "friendship" ring. Unless he agreed she would make her own way to the airport. 30 He did agree and whilst en route she suggested they call into a jeweller who was known to her and located in the vicinity of her home. Somehow, they were able to quickly choose a suitable ring which the jeweller then discounted from $2300 to $2000 and settled purchase on the doctor's credit card. She later obtained a receipt for the original price which she presented in evidence. 31 True to the conservative values of her "fraternity" beliefs Ms Azar expected his presentation of the ring to represent "formal commitment" of their everlasting bond, "engagement," which – as a consequence – would cause her to forfeit each of two alternative marriage proposals that she claims to have been in the offing. (Names were supplied of the two "prominent" aspirants.) Dr Ritchie denies having proposed marriage – he was already "encumbered" - but agrees that he had considered joint purchase of a property closer to the surgery. 32 And, although she states that she had been earlier "informed" by staff members of other medical practitioners in the Eastwood premises – in the first few days of her employment – that Dr Ritchie had earlier been engaged in a string of affairs with her predecessors, Ms Azar nevertheless considered his expressions of "love" and "promises" as genuine foundation for a permanent and secure future once the ring was placed on her finger in the shop. Just as she would be singularly faithful to him she had insisted that she was not prepared to share him with his wife. Not interested in the role of concubine, she had warned him of the consequences if the "commitment" was not fulfilled. Rising Tensions 33 However, as their expressed feelings and actions had blossomed to dizzy heights, and Ms Azar was increasing the pressure for him to join with her, Dr Ritchie admitted his extra marital interests to his wife. Rather than reject him, as he states he had "expected," Mrs Ritchie "decided that she would work to repair our marriage ... our marriage definitely started to take a turn for the better, though I continued my relationship with Ms Azar." As the marriage showed signs of rekindling Ms Azar, according to Dr Ritchie, "became increasingly aggressive to my wife, refusing to put through telephone calls she made to my Eastwood Office and on several occasions abusing her on the phone." Ms Azar claims the wife had known about their affair all along and the two had a number of spirited discussions. 34 A month or so earlier, in early May at about the commencement of their active relationship, Dr Ritchie discovered that the affectionate notes he had previously received from Ms Azar – and which he had "saved" in his desk drawer – had disappeared. When he asked her as to their whereabouts he states that she replied with words to the effect: "I have removed them for safekeeping. I will keep them at my house ... you can see them in the future if you wish."