Ary v Sydney South West Pathology Service [2013] NSWIRComm 1010

Industrial Relations Commission New South Wales Medium Neutral Citation: Ary v Sydney South West Pathology Service [2013] NSWIRComm 1010 Hearing dates: 30 May 2013 Decision date: 19 June 2013 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal application; Applicant alleged that attempts were made to poison her; Allegation of conspiracy by her department management against her; Respondent contended that Applicant refused to admit to mental issues and refused all attempts to assist her with treatment; Dismissal was neither unfair nor unjust nor unreasonable. Legislation Cited: Industrial Relations Act 1996 Anti-Discrimination Act 1977 Surveillance Devices Act 2007 Category: Principal judgment Parties: Tazra Ary, unrepresented Representation: Mr S Bull (Senior Industrial Relations Officer and in-house Solicitor for the Respondent) File Number(s): IRC 1198 of 2012

DECISION 1Ms Tazra Ary commenced permanent part-time employment at the base level of Technical Assistant within the Pathology Department of Liverpool Hospital on 31 August 2009. She obtained a Bachelor of Science (Biomedical Science) (2007), a Diploma of Health Science (Pathology Techniques) (2001) and a Certificate III in Business Administration (Medical) (2009). 2Her job was to receive specimens and prepare them for machine-based analysis, answering telephone calls, releasing results and receiving and despatching products. Her direct supervisor was Ms Nelly Luk (Senior Scientist in charge of a section). 3In March 2010, the Applicant applied for a position, still as a Technical Assistant but at a higher rate of pay. The successful applicant was a TAFE student. The Applicant felt that it was unfair because the successful candidate was less qualified than her as she had greater experience and obtained three Australian qualifications. 4Prior to the interview, the Applicant was allegedly advised by a colleague in the laboratory that the TAFE student would get the job as "she knows how things work" and that it was important for one to pay money to receive a promotion in that organisation. She also contended that other colleagues had advised her "to be close with Ms Kitchener" (Senior Scientist) "because everything in the Lab is in her hands". 5In October 2010, the Applicant again failed in her attempt to obtain another Technical Officer position. She believed that she was the only Applicant who had not been given results and feedback. 6In November 2010 the Applicant brought to Mr Alvaro's attention what she perceived as irregularities and corrupt practices in the Department. She said he had become angry, threatening and intimidating towards her. She said he had conducted the meeting behind a locked door in his office. She noted a change in his attitude towards her after that and she began being bullied and harassed by some of her colleagues who, hitherto, had maintained a cordial relationship with her. 7The failure to obtain the promotions apparently triggered a complaint being lodged by the Applicant at a meeting with Mr Anthony Schembri, General Manager-Liverpool Hospital (with Ms Luci Caswell, Director Human Resources -Liverpool Hospital, in attendance), on 22 December 2010 of bullying by two co-workers - Mr Frank Alvaro (the Biochemistry Laboratory Manager) and Ms Lynda Kitchener (Senior Scientist in Charge of the Laboratory). In addition, she complained of corrupt recruitment and management practices in the Biochemistry Laboratory on the basis of her belief that one was required to offer bribes to staff members in order to obtain promotions. 8Mr Schembri wrote to the Applicant on 24 December 2010 confirming that the Applicant had provided him with a type written document and a handwritten document which documented her concerns. There was no mention made of any photographs having been provided to him. Mr Schembri advised that Mr Scott Fanker, Cluster Service Manager Mental Health Services and Claire Anderson, Manager Operational Initiatives, had been delegated to investigate her complaint. 9Mr Scott Fanker, Service Manager, Mental Health, South West Sydney Local Health Network commenced an investigation into the complaint on 20 January 2011. In January 2011, the Applicant attended a fact finding meeting with the Service Manager of Mental Health and the Executive Officer of the General Manager's Unit. Following that meeting, she was referred to the Employee Assistance Program (EAP) as it was considered that she was in need of Psychological assistance. 10The Commission was provided with a copy of the transcript of the interview with Mr Wyndham Timmins (Business Manager, Sydney South West Pathology Service) ("SSWPS") by Mr Fanker on 30 March 2011. 11In June 2011, the Applicant, in an alleged attempt to get away from Mr Alvaro and Ms Kitchener, applied for a position as Technical Officer in a different laboratory - Special Chemistry. 12On 9 September 2011, Ms Luci Caswell, the then Director of Human Resources, Liverpool Hospital, wrote to Ms Ary advising that the correct processes had been carried out by management and that the investigation found no evidence to substantiate the allegations she had made. The Applicant was advised that the Respondent considered the matter closed and encouraged her to continue to access the Employee Assistance Program (EAP) which she was already utilising. 13Ms Ary met with Ms Caswell and Mr Chris Patchett (Manager, Employee Assistance Service SWSLHD) with regard to the outcome of the investigation. The above advice was confirmed. In addition, she was advised that the position for which she had applied had been "pulled" due to budget cuts. 14When her request to meet with the General Manager was declined, the Applicant threatened to make a complaint outside of the hospital in relation to the alleged corruption she had observed. 15On 15 September 2011, the Applicant developed severe acute anxiety with shortness of breath, chest pains, nausea and a burning tongue after eating her lunch at work. Believing that she had been poisoned by someone at work, she reported her concerns to a Manager who escorted her to have blood tests which came back normal. She contended that urine tests should have been conducted but no sample was taken. She commenced an extended period of sick leave on 15 September 2011. She exhausted her paid sick leave entitlements on 22 December 2011 and continued to be absent from the workplace on unpaid leave up to her termination on 19 November 2012. 16On 16 September 2011 Ms Ary, accompanied by her husband, attended the General Manager's Unit requesting to speak to Mr Anthony Schembri, General Manager. Mr Schembri was unavailable and Ms Jennifer Arnold, Deputy Director Human Resources, Liverpool Hospital, met with them instead and re-directed them to Mr Timmins as the appropriate contact in relation to the Respondent's service. 17On or about 17 September 2011, still feeling ill with nausea and chest pains, the Applicant presented to Liverpool Hospital Emergency Department where, she claimed, she remained overnight. She contended that a urine sample had been taken on that occasion but the results had not been included in her file because she had sneaked a look at it. She also contended that an attempt had been made to poison her food and she has kept the food in her freezer for testing by the Commission. 18The Applicant contended that a confidential document written on 17 September 2011 above Dr Talbot's signature was placed in her handbag by an unknown person during her admission in the Emergency Department of Liverpool Hospital but she did not discover it until 18 September 2011. 19When the Applicant left the Emergency Department on 18 September 2011, she made her way to the Police Station to report the "poisoning". She noted that her car was being followed by a black car. When the Police advised that they could not assist her, it confirmed in her mind that they had been influenced by a call from Liverpool Hospital. 20The Applicant became concerned when two persons from Mental Health Services visited her home on 19 September 2011. She instructed her son to advise them that she no longer lived at that address. 21On 19 September 2011, the Applicant, her husband and three of their younger children, drove out of their home at 6 am and took their concerns to Parliament House, Canberra. 22The Applicant took two days' annual leave on 21 and 22 September 2011. 23Mr Timmins and Ms Arnold met with the Applicant at 9 am on 23 September 2011. Also present at the meeting was Ms Betty Green the Applicant's support person organised by Parliament House. Mr Timmins provided a copy of the contemporaneous notes he caused Ms Arnold to keep of that meeting during which: * Mr Timmins explained that the meeting had been called to clarify the organisational structure of SSWPS and the chain of command within the service; * Ms Ary kept repeating that her previous complaint had not been finalised; * Ms Ary complained that she had attended to see Mr Timmins the previous week to advise that she was being poisoned by her colleagues in her department but could not get to see him. Mr Timmins was not aware of that; * Ms Ary confirmed that she had reported the matter to the Police but could not provide an Event Number as requested by Mr Timmins; * As the hospitals who employed Technical Assistants were limited, Mr Timmins offered to transfer Ms Ary temporarily to Concord or RPA Hospitals while his investigation was proceeding. Mr Ary declined that offer because of the distance she was required to travel (from Casula). She requested that he attempt to find her employment in a private laboratory but that was beyond his jurisdiction. * Instead, she opted to accept Mr Timmins' offer to take eight weeks' leave and signed the appropriate leave form. * Ms Ary agreed to Ms Arnold's request to release her medical records in relation to the alleged poisoning to assist with that investigation; * Ms Ary complained that while she was out, someone had left a card from the Mental Health Emergency Team at her home. Mr Timmins confirmed to her that the Respondent had not referred the matter to that unit. * Ms Ary requested that if Mr Timmins needed to contact her during her period of leave, that he do so via Ms Green. 24On 21 October 2011, the Applicant lodged a complaint with the NSW Anti-Discrimination Board alleging discrimination in her employment on the basis of race and the Applicant's ethno-religious background. The upshot of those proceedings was a determination by the President of that Board that the complaint was lacking in substance. 25The President, at the request of the Applicant, referred the complaint to the Administrative Decisions Tribunal (ADT). 26In the interim, the Respondent determined that a review of the Applicant's employment was required based on the following: * the Applicant had been on sick leave since 15 September 2011; * the conclusions arrived at by Dr Allnutt; * the absence of any change in the Applicant's views concerning her workplace; * the lack of any indication that the Applicant was participating in any treatment or was prepared to seek treatment; * the fact that the Applicant was unable to fulfil the duties of her substantive position. It was considered appropriate to ask her to show cause why her employment should not be terminated. 27On 12 October 2011, the Applicant wrote to the Honourable Julia Gillard, Prime Minister of Australia, making further allegations of corruption in the recruitment processes of Liverpool Hospital. 28The Applicant lodged a workers' compensation claim in January 2012 citing psychological injuries as a result of her alleged poisoning in the workplace. That claim was declined on 20 January 2012 on the basis of a factual investigation and independent medical examination which found that the Applicant was suffering from an underlying mental health disorder not related to her work. 29The Applicant wrote to The Hon Jillian Skinner MP, Minister for Health, regarding her corruption allegations. As a result of that correspondence, she received a letter from Mr Anthony Schembri, General Manager, SWSLHD, on 17 January 2012, advising that the Hospital viewed the issues she had raised with the Minister as serious matters and that an investigation into the circumstances surrounding those issues would be conducted. 30The Applicant received a response from the Minister dated 13 February 2012 declining to meet with the Applicant due to her parliamentary commitments. Nevertheless, the Applicant was advised that her concerns had been forwarded to Ms Amanda Larkin, Chief Executive, SWSLHD for review. The Applicant was advised that the Minister's enquiries had revealed that the Internal Audit Department of the Local Health District was conducting a review of the Applicant's concerns and will work with Liverpool Hospital to address the issued she raised in her letter. 31The further investigation by Human Resources conducted into the Applicant's allegations concluded, on 23 March 2012, that the allegations were unsubstantiated. 32As a result of that finding, Mr Rudy Angulo (Network Manager, Pathology) (Mr Timmins' 2IC) wrote to the Applicant on 23 February 2012 advising that she was required to attend an appointment on 9 March 2012 to undergo an independent medical assessment by Dr Lana Kossoff to assess her ability to perform the inherent duties of her position as a Technical Assistant in the Department of Clinical Chemistry, SSWPS. 33The Applicant failed to attend that appointment citing ill health as the reason. Further attempts made for her to attend the medical assessment also failed. 34The Applicant went to see Mr Chris Hayes MP, Federal Member for Fowler, on 10 April 2012 resulting in Mr Hayes writing to the Minister for Health on her behalf. The Minister responded to Mr Hayes on 28 May 2012 and Mr Hayes wrote to the Applicant on 7 June 2012 confirming that the Minister's investigations had revealed that due to the lack of evidence, her concerns as well as her workers' compensation claim could not be substantiated. 35The Hon. Jillian Skinner MP, on 28 May 2012, referred the Applicant to meet with Mr Anthony Schembri regarding her situation. 36Finally, on 21 August 2012, the Applicant attended an independent clinical evaluation by Dr Stephen Allnutt, Forensic Psychiatrist, who provided a report on the same day. Dr Allnutt provided details of what the Applicant had told him, including: * On or about 16 September 2011, while she was at work and after eating her lunch, her tongue started tingling and she was unable to breath, and experienced palpitations and shortness of breath. She thought someone within the organisation had put chemicals or poison in her food. She had a blood test later that day and the result was negative. She thought that it was probably a chemical that did not show up in blood but would have shown up in urine had she been required to provide a sample on the day; * She was later admitted to the Emergency Department at Liverpool Hospital. She became very anxious because she had put her Manager on notice that she was going to make a complaint outside of the hospital and believed that someone was trying to either threaten or kill her because of her knowledge of the corruption at the workplace. Despite the fact that she was told all the tests were negative, she had collected her urine which was tested by the nurses. Someone told her that there was blood in her urine but when she accessed the hospital records she discovered that the urine test results were not noted. Instead, she found two letters included in her record - one stating the belief that she had poisoned herself and the other indicating that she was not admitted; * She had collapsed and was experiencing palpitations. A defibrillator was used on her. As it was not being used by a doctor, she interpreted it as further evidence of collusion between the Emergency Department and her Manager to either kill her or threaten her so that she will run away from the hospital; * When she left the hospital in September 2011, she took some of the hospital food in her bag for testing. She drove to the Police station noting that she was being followed by another car. The Police advised that they could not assist her and advised her to contact the Ombudsman. She believed that the hospital had influenced the Police to consider her as a "mental" case; * The Ombudsman's office also advised her that it could not act on her complaints; * She had taken steps to bring the matter to the attention of Parliament and was provided with telephone numbers to help her find alternative employment. She had booked an appointment to see the Prime Minister. * Finally, she told Dr Allnutt that she was feeling much better and her health was improving because, as a result of her whistle-blowing and bringing matters to the attention of organisations outside of the service, the hospital was now aware that other people knew of the danger she was in and therefore had ceased harassing her. 37Dr Allnutt made the following findings: * the Applicant was manifesting a number of beliefs relating to a conspiracy involving members of the Pathology department (led by her Manager) and the hospitals associated with it and the Mental Health team conspiring against her to prevent her from disclosing corruption within their workplace; * the belief was triggered after the disappointment of not achieving a position she had applied for and a co-worker convincing her that the environment was corrupt because people could pay to progress their careers. She had become more vigilant of others' behaviours, she had began to perceive the behaviours of others as evidence for, initially, corruption and later, conspiracy. * the Applicant would qualify for a diagnosis of a delusional disorder persecutory type. * the subjective stress she experienced was likely to have caused the symptoms she developed which were consistent with depression and panic attacks. It was probable that the panic attacks were interpreted by the Applicant as evidence of attempts by the Respondent to poison her, a view she maintained up to the time of her consultation with him. * she maintained the ongoing delusional belief of persecution within her prior workplace which was very psychologically distressing for her. * her functioning, in particular with regard to interpersonal relationships and occupational capacity, was impaired. 38Dr Allnutt concluded, as at 21 August 2012, that a return to her workplace would not be in her best interest as it would exacerbate her health problems: "as a consequence of her incorporating various staff members....into her delusional system, I do not believe she is currently fit to perform the inherent requirements of technical assistant as outlined in the position statement because she is prone to perceive, what to others would appear to be usual activities, as possible evidence for a conspiracy and is at risk of coming into conflict with her co-employees and employers. Thus, at this stage I do not believe it would be prudent for her to return to her pre-existing work environment; it would be difficult to provide opinion on the expected amount of time that she would be restricted from these duties and I would suggest a further assessment occur in six months' time." 39A copy of Dr Allnutt's report was provided to the Applicant on two separate occasions by Mr Rudy Angulo, Acting Business Manager Pathology. 40The Respondent had, in both written communication to the Applicant, and verbally, offered to assist the Applicant in accessing psychiatric assistance. 41At the request from the Applicant made on 30 August 2012, Mr Rudy Angulo and Mr David Fenech, Director Human Resources, Liverpool Hospital, met with her and her husband on 5 September 2012. Also present at the meeting were Mr Colin Timms from the Health Services Union and Mr Ayman, an independent organised by the office of Mr Chris Hayes MP, to act as her support persons. The Applicant continued to allege at that meeting that her colleagues had tried to poison her and that there were conspiracies within Liverpool Hospital regarding her medical treatment and to hide the alleged poisoning. 42By letter from Mr Wyndham Timmins, Business and Operations Manager, SSWAPS Administration, on 6 November 2012, the Applicant was offered assistance in accessing psychologists and psychiatrists through the Employee Assistance Program (EAP). The Applicant was required to provide a written response by 16 November 2012. 43Undated correspondence was received from the Applicant on 16 November 2012 providing reasons why her employment should not be terminated. She advised that she was sent back from Parliament House Canberra with advice to meet and sort the matter out with the Respondent. Ms Ary continued alleging corruption and cover up and offered, on a confidential basis, to assist Mr Timmins by pointing out where the corruption lay. 44The Respondent did not receive any assurance from that response that the Applicant's mental state had improved or that she was able to undertake the inherent requirements of her position or that she was seeking treatment in accordance with Dr Allnutt's advice. On that basis, the Applicant was dismissed in correspondence from the Acting Chief Executive, Ms Tracey McCorker, dated 19 November 2012. The Applicant was advised that the Respondent was prepared to assist her in accessing treatment through the EAP. 45On 3 December 2012, the Applicant lodged a section 84 application pursuant to the Industrial Relations Act 1996 (the Act) seeking relief against her alleged unfair dismissal. 46On 4 December 2012 Deputy President Hennessy of the ADT conducted a hearing as to whether leave should be granted under ss 96 (1) of the Anti-Discrimination Act for the Applicant to have the tribunal conduct a hearing into the merits of her complaint. Deputy President Hennessy adjourned the hearing to 29 January 2013 to allow the Applicant to obtain a second opinion from another psychiatrist. 47Conciliation proceedings before Bishop C on 8 January 2013 were unsuccessful. The Commissioner did not issue directions on that occasion as the Applicant had extant proceedings before the ADT concerning identical issues thereby raising concerns in relation to ss 90 (b) of the Act. 48The Applicant attached a report, dated 21 January 2013, from Alexandra Vrjosseck, Consultant Psychiatrist, who confirmed that the conspiracy beliefs held by the Applicant were of a delusional nature precipitated by a combination of events: * the disappointment and frustration she felt by the failure to secure a higher paid position on three occasions; * the aggravation of her distress by the comments allegedly made by co-workers about what was required of her to secure a promotion; * the subsequent hyper vigilance and observation with increased sensitivity; and * what she perceived as failure of management to take appropriate action was considered by her to be confirmation of her conspiracy theory. 49Dr Vrjosseck stated that the Applicant revealed some limitation/restriction in use of jargon and colloquial English which was not uncommon in those in whom English is not their first language. He opined that the comments by her co-workers were possibly misinterpreted by her limited understanding of local jargon/humour. 50Dr Vrjosseck found that the Applicant is currently functioning well and showed no signs of depression, psychosis or cognitive impairment. He held the belief that she was capable of resuming work for which she was trained. Nevertheless, it was not considered appropriate that she return to her previous environment with its accompanying stresses.