DECISION NO:261/97

 

CATCHWORDS

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - Consideration of the meaning of VALID REASON - A wide range of allegations were made against the applicant, concerning HER CONDUCT AND PERFORMANCE, almost all of which the respondent failed to prove - In particular, a multiplicity of allegations concerning improper and intimidatory conduct by the applicant were fabrications - The limited extent to which the allegations against the applicant were proven did not establish that her conduct or performance had been such as  to warrant the termination of her employment - If the penalty of termination of employment is out of proportion to the seriousness of the conduct complained of, then the termination of employment will not be justifiable, and will not be for a valid reason - TERMINATION OF EMPLOYMENT UNLAWFUL, as not for a VALID REASON.

 

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - The Acting Chief Executive Officer of the respondent, who made the decision to terminate the applicant’s employment, made that decision upon the basis of a memorandum which contained serious factual errors concerning the applicant’s conduct.  Those matters (being mistakes by the author of the memorandum) were never put to the applicant before the termination of her employment - As a result, the applicant never had the OPPORTUNITY TO RESPOND to them required by section 170DC of the Act, and the termination of her employment was UNLAWFUL.

 

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - REINSTATEMENT - Whether APPROPRIATE - Whether IMPRACTICABLE - Consideration of the principles involved in determining whether it is IMPRACTICABLE  to order REINSTATEMENT - REINSTATEMENT is the primary remedy for an unlawful termination of employment, and should therefore be ordered, unless the Court finds it IMPRACTICABLE so to do - “Impracticable” means something less than impossible, but reinstatement will not be impracticable if it is merely inconvenient, difficult, or disruptive, without causing an unacceptable problem, or unacceptable embarrassment, or seriously effecting productivity, or seriously effecting harmony within the employer’s business.  Any adverse consequences to the employer are relevant, but it must be remembered that an employee whose employment has been unlawfully terminated has suffered an injustice and that should be made right, if it can.

 

 

Workplace Relations Act 1996, ss: 170DC, 170DE(1), 170EDA(1)(a), 170EE, 482

 

 

 

Anthony Smith and Associates Pty Ltd v Sinclair (1996) 67 IR 240

 

Cox v Australian Meat Corporation Pty Ltd, von Doussa J,Industrial Relations Court of Australia, 14 June 1995, unreported

 

Fargie v Freedom Foods (Aust) Pty Ltd, Industrial Relations Court of Australia, Parkinson J, 14 October 1996, unreported

 

Johns v Gunns Ltd, [1995] 60 IR 258

 

Kerr v Jeroma Pty Ltd, Industrial Relations Court of Australia, Marshall J, 7 October 1996, unreported

 

Malik v Bank of Credit and Commerce International S.A. (In Compulsory Liquidation) [1997] 3 WLR 95

 

Nicolson v Heaven and Earth Gallery Pty Ltd [1994] 1 IRCR 199

 

Patterson v Newcrest Mining Ltd, Industrial Relations Court of Australia, Marshall J, 21 December 1995, unreported

 

Patterson v Newcrest Mining Ltd, Industrial Relations Court of Australia, Full Court, 6 June 1996, unreported

 

Perkins v Grace Worldwide (Aust) Pty Ltd, Industrial Relations Court of Australia, Full Court, 7 February 1997, unreported.

 

 

 

 

KARDELL v SOUTH EASTERN SYDNEY AREA HEALTH SERVICE

 

NI 3625 of 1995

 

 

BEFORE:                     Judicial Registrar Patch

PLACE:                       Sydney

DATE:                         8 September 1997

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

 

NI 3625 of 1995

 

BETWEEN:

 

CYNTHIA KARDELL Applicant

 

AND

 

SOUTH EASTERN SYDNEY AREA HEALTH SERVICE Respondent

 

 

BEFORE:       Judicial Registrar Patch

PLACE:          Sydney

DATE:            8 September 1997

 

 

MINUTES OF ORDERS

 

 

THE COURT ORDERS AND DECLARES THAT:

 

1.    The applicant be allowed to file her application by 2 December 1995.

2.    Within seven days of today the respondent shall reinstate the applicant by reappointing her to the position in which she was employed immediately before the termination of employment.

3.    The employment of the applicant is, for all purposes, deemed to have been continuous in the position in which she was employed immediately before the termination of her employment, up to the time of her reinstatement.

4.    The respondent is to take such steps as may be necessary to maintain the continuity of the applicant’s employment for all purposes.

5.    The respondent is to pay the applicant the amount of remuneration lost by the applicant as a result of the termination of her employment, in accordance with the principles set out in the reasons for judgement herein.

6.    If an agreement is reached between the parties within fourteen days of the date of this judgement on the question of the gross amount of remuneration lost, consent orders may be filed pursuant to Order 35 Rule 10.

7.    Within seven days of today, the applicant is to provide the respondent with copies of all documentation in her possession or control concerning any remuneration earned by her since the termination of her employment, together with the names, addresses and telephone numbers of all persons who have provided that remuneration.

8.    Any monies paid by the respondent to the Commissioner of Taxation as taxation in respect of the monies ordered to be paid to the applicant for remuneration lost shall be deemed to have been paid in pro tanto satisfaction of the judgement debt.

9.    Liberty to apply on seven (7) days notice.

 

 

 

 

 

 

 

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

 

NI 3625 of 1995

 

BETWEEN:

 

CYNTHIA KARDELL Applicant

 

AND

SOUTH EASTERN SYDNEY AREA HEALTH SERVICE Respondent

 

 

 

BEFORE:       Judicial Registrar Patch

PLACE:          Sydney

DATE:            8 September 1997

 

 

REASONS FOR DECISION

 

 

The applicant claims that the termination of her employment was unlawful, and seeks reinstatement.  In the alternative, if the Court were to find that reinstatement was either inappropriate or impracticable, the applicant seeks compensation.  The applicant also claims interest on any monies ordered to be paid to her.

 

THE LONGEST HEARING IN THE HISTORY OF THE COURT

 

The hearing of the evidence, and oral submissions, took 42 sitting days, which were spread out over a period of more than a year.  Eighteen witnesses gave evidence, there were nearly 200 exhibits, and transcript is just short of 3000 pages long.

 

There were many issues in the case - all of which were explored exhaustively.

 

The cross-examination of the applicant alone took eight days.  Much of this cross-examination was repetitive, and directed towards questions on credit.  Other witnesses were also cross-examined at great length. 

 

This has been a very difficult judgement to write - not only because of the vast volume of material which had to be carefully considered.  As will be seen below, questions of credit play an important role in the decisions which I have reached, both on questions of fact and on what orders to make.  As the reputation of some several people will probably be affected by this judgement, it was necessary to be extremely careful in reaching conclusions as to matters of personal credit.  The evidence had to be very carefully analysed.

 

The Court has ordered the reinstatement of the applicant.  The Court is aware that the applicant will return to a Department which has been marked by interpersonal conflict and rivalries for at least the last six years.  The Court urges all those in the Department to remember that they are professionals, and that they all should focus on working together for the long term good of their patients, and the community that the Department and the Hospital service.

 

BACKGROUND FACTS

 

The applicant’s employment history

 

The applicant’s date of birth is 26 June 1948.  In 1971 she obtained her certificate in radiation therapy.  In 1974 she commenced working for a predecessor of the respondent Area Health Service when she was engaged as a radiation therapist in the Radiation Oncology Department of the Prince of Wales Hospital.

 

She worked there continuously until 11 August 1995, when she was suspended from duty with pay.  On 20 October 1995 her employment was terminated by the respondent.  She was paid a further five weeks wages, as pay in lieu of notice.

 

At the commencement of the trial of this matter, there was an issue as to whether the suspension of the applicant on 11 August 1995 amounted to her “constructive dismissal”.  Suffice it to say that, in my opinion, the termination of her employment occurred on 20 October 1995.  Shortly after her suspension, an application was field in this Court claiming in effect, that she had been constructively dismissed.  On 1 December 1995, a further application was filed in respect of the termination of employment which occurred on 20 October.  The respondent has always been on notice that the termination of the applicant’s employment was challenged, and does not oppose an order that she be allowed to file her (2nd) application out of time.

 

In 1979 she was appointed Chief Radiation Therapist, and held that position until the time of the termination of her employment.

 

At the time of the termination of her employment, the applicant’s annual salary was, in round terms, $54,000.00 (gross).

 

The position of Director of Radiation Oncology

 

In 1991 Professor Withers left the position of Director of Radiation Oncology.  The normal recruitment procedures were put in train, including international advertising, and, in late 1993 or early 1994, Professor Thomas indicated, on a provisional basis, that he would accept the position.  However, after spending some time in the Department, in March or April 1994 Professor Thomas advised the Prince of Wales Hospital that he would not, in the end, take up the position.

 

For about 6 months in 1991, Dr Hedy Mameghan acted in the position of Director of the Department of Radiation Oncology.

 

From November 1991 to 4 April 1995, Dr Robert Smee acted in the position of Director of the Department of Radiation Oncology.

 

On 5 April 1995, Dr Smee was appointed, for a period of 3 years, to the position of Director.

 

That appointment followed attempts from 1991 to recruit a permanent appointee.

 

Up until and including the time that Professor Thomas declined to take up the position, it had always been a “conjoint” position, involving an appointment at Associate Professor or Professor level in the Faculty of Medicine at the University of New South Wales.

 

For reasons which I will set out below, Dr Smee’s appointment as Director on 5 April 1995 did not involve a conjoint appointment with the University of New South Wales.

 

After Professor Thomas declined to accept the position, Dr Smee continued as the Acting Director.  For a while, no specific decision was taken to recommence recruitment for the position, and the matter was left in abeyance.  It seems that Professor Thomas’ refusal to accept the position had created difficulties in recruiting a replacement.  Furthermore, there were internal tensions within the department, which had become known outside.  That was also a factor.

 

In about mid 1994, Dr George Bearham, the Director of Clinical Services for the Prince of Wales Hospital, in consultation with at least Professor Michael Friedlander, the Director of Medical Oncology in the Department of Medical Oncology at the Prince of Wales Hospital, and with Mr Brian Johnston, the Executive Director for the hospitals known as the Prince Henry and Prince of Wales Hospital Group (within the then Eastern Sydney Area Health Service, which operated those, and other, hospitals) decided to readvertise for the position of Director of the Department of Radiation Oncology.

 

As a result of that decision, the position was advertised both within Australia and internationally.

 

Four applications were received before the deadline.  One application was received late, from overseas, (Dr S Ling) but that application was assessed by Dr Bearham, and excluded as a late application.

 

Of the four applications made before the deadline, one of them, Dr M Maher, was “culled” by Dr Bearham (after consultation with, at least, Professor Friedlander), because, in Dr Bearham’s opinion, his job history did not suggest that he had the requisite experience.  Another factor in not giving Dr Maher an interview was the fact that he was from overseas.  I accept Dr Bearham’s evidence as to why Dr Maher was not called for an interview.

 

The three remaining candidates were Dr Hedy Mameghan, Dr Robert Smee, and Dr Quenten Walker.

 

Dr Smee and Dr Mameghan were specialist oncologists, already working at the Prince of Wales Hospital.  Dr Walker was a senior staff specialist in oncology at the Queensland Radium Institute.

 

All three of those remaining applicants were invited to attend a meeting of the Medical Appointments Advisory Committee (“the MAAC”) on 12 December 1994.

 

In his statement (Exhibit 168) Dr Bearham said this:

 

“24.     Of the four applicants received in time I formed the view that none of them fully met the requirements of the job either from the hospital’s point of view or that of the University in providing the conjoint position.

 

25.       I decided against calling Mr Maher from overseas to attend for an interview.  His job history did not suggest he had the requisite experience.

 

26.       The three remaining local candidates, Dr Mameghan, Dr Smee and Dr Walker were all submitted for interview even though I believed none of them fully satisfied the requirements of the position.

 

27.       Dr Mameghan had limited management experience as Acting Director of the department for six months.  Dr Walker had no management experience.  None of the candidates appeared to have the requisite level of clinical and basic research.  Nevertheless I decided that all three should be interviewed as the decision was a matter for the MAAC.

 

28.       In circumstances where none of the candidates are likely to be appointed to the position it is not uncommon to go through the process in any event.  Ultimately the decision is one for the MAAC.  There is an education and development benefit in allowing candidates to be interviewed even if it is unlikely that they will be appointed.  The process gives them the experience of being interviewed and demonstrating desire for advancement.”

 

A perusal of the applications of those three candidates (which are to be found as part of Exhibit 86) supports Dr Bearham’s view that “none of them fully satisfied the requirements of the position”.  I accept Dr Bearham’s evidence as to why, nonetheless, all three of them were granted an interview.

 

THE DECISION OF THE MEDICAL APPOINTMENTS ADVISORY COMMITTEE ON 12 DECEMBER 1994 TO RECOMMEND THE APPOINTMENT OF DR SMEE AS DIRECTOR OF THE DEPARTMENT OF RADIATION ONCOLOGY.

 

Did Dr Bearham, Dr Smee, and Mr Johnston conspire to ensure the appointment of Dr Smee to the position of Director?

 

A great deal of the 42 days of evidence was concerned with this controversy.

 

However, during cross-examination of Dr Bearham, (the 2nd last witness in the respondent’s case), counsel for the applicant, on instructions, abandoned the allegation that there had been such a conspiracy.

 

The existence of such a conspiracy was rejected by all those alleged to have been involved.  I accept their evidence.

 

The genesis of the allegation that Dr Bearham, Dr Smee and Mr Johnston had conspired to ensure the appointment of Dr Smee as the Director of the Department was a conversation that Dr Mameghan overheard between those persons in either April or May 1994.

 

He said that he was in his office, and the door was open.  He said that Dr Smee, Dr Bearham and Mr Johnston were in the corridor outside his office, and that he could see them and hear them, through the crack in the door between the wall and the door, where the hinge edge of the door is. He said the door was partly open, and he went up to it to listen.

 

Dr Mameghan said that he could not recall the exact words of the conversation, but that it went something like this:

 

Mr Johnston                “Do you want this job or not?” (said to Dr Smee)

 

Dr Smee                      “Yes, I’d love it” or “I’d love to”.

 

Mr Johnston                “Well, let’s go for it.  All right then.  Let’s get on with it.”

 

Dr Mameghan’s evidence as to the tone of the conversation was as follows:

 

“The tone was familiar.  It was three people who know each other well and who have been working well together and decided that something should happen.  It’s as if it’s a sort of a conference on the corner of a corridor, kind of putting the final touches on it.  Okay, let’s do it kind of thing.”

 

Dr Mameghan said that Dr Bearham said nothing in that particular conversation, but that the three of them stood there in a triangle.

 

Very shortly after he had overheard that conversation, Dr Mameghan repeated it to a number of people, including Dr Fisher (the medical statistician in the Department of Radiation Oncology, a staff specialist position) and the applicant.

 

It is unnecessary to traverse the evidence as to what Dr Mameghan said to Dr Fisher and the applicant, in view of my finding that there was no conspiratorial agreement as originally asserted.

 

I accept that Dr Mameghan believed that the conversation that he had overheard was an improper agreement between those present to ensure the appointment of Dr Smee to the position of Director.  However, in my view, he was mistaken.

 

It must be borne in mind that there had been a long history of internal conflict in the Department.  Senior medical staff, and other staff, including the applicant, had been at loggerheads over the running of the Department for several years.  Dr Mameghan and Dr Smee, although they maintained a professional relationship, frequently disagreed about matters to do with the running of the Department.  There was certainly a degree of personal animosity between them at the time that Dr Mameghan overheard the conversation.

 

In the context of the above circumstances, what happened, in my opinion, was that Dr Mameghan put a “gloss” on an innocent conversation in which the persons involved were discussing the desirability of readvertising for the position, and the possibility that Dr Smee would apply for it.  There was, of course, nothing improper in Mr Johnston or Dr Bearham suggesting that Dr Smee apply for the position - or even in encouraging him to do so.

 

Dr Mameghan repeated the conversation he had overheard to the applicant, together with the “gloss” that he put on it.

 

As a result of that, Ms Kardell came to believe, at the very least, that there was a real possibility that such a conspiratorial agreement had been reached.  Her readiness to accept that was, for much the same reasons as Dr Mameghan, conditioned by the years of conflict within the Department that had preceded Dr Mameghan telling her about the conversation he had overheard.

 

Dr Mameghan is a serious and responsible person, and a dedicated, obviously talented, and hardworking doctor.  Even persons of his calibre can jump to the wrong conclusion.  In my opinion, that is exactly what he did.

 

Were some members of the Medical Appointments Advisory Committee improperly biased in favour of Dr Smee at the meeting on 12 December 1994?

 

This issue was raised by counsel for the respondent in cross-examination of Dr Mameghan, during which she asked Dr Mameghan his opinion as to the honesty, or integrity, of various of members of the MAAC.

 

Dr Mameghan gave evidence which was, to put it mildly, uncomplimentary when he was asked these questions, and stated, speaking generally, that in some respects, some of the members of the MAAC were dishonest, or biased (or the like).

 

Counsel for the respondent then proceeded to call these people to knock down the “straw man” that she had put up.  She succeeded in doing that.

 

I do not accept, having listened to those witnesses and Dr Mameghan carefully, that any of the members of the MAAC acted dishonestly, or improperly, at the meeting on 12 December 1994.

 

A considerable portion of the time in this very lengthy case was taken up with this useless controversy.  If counsel for the respondent had left the evidence as it was, and not cross-examined Dr Mameghan in the way she did, then there would have been no substantive suggestion about the lack of integrity of any members of the MAAC - apart from the alleged conspiratorial conversation, which is dealt with above.

 

Why the Medical Appointments Advisory Committee recommended the appointment of Dr Smee.

 

As noted above, Dr Bearham was of the opinion that none of the persons called for interview were qualified for the job, as advertised.  One of the critical pre-requisites for the job was a strong background in clinical and basic research.  Dr Smee clearly did not have the requisite level of clinical and basic research.

 

Dr Bearham, in his evidence, said that the situation in the Department was, in his opinion, such that the Department could not be allowed to go on with only an “acting” director.  Accordingly, prior to the meeting of the MAAC on 12 December 1994, he and Mr Johnston had decided that, if the MAAC did not recommend the appointment of any of the candidates to the position “as advertised”, (which was what he had expected would happen) he would suggest that the MAAC appoint the most suitable of the three candidates to the position, on the basis that it would not be a “conjoint” appointment with the University.  One result of this would be that the requirement for a strong background in clinical and basic research would no longer apply.  The position would be managerial and clinical.

 

Accordingly, when the MAAC decided that none of the candidates were suitable for the position, as advertised, Dr Bearham suggested that Dr Smee be appointed to the position of Director, for a 3 year term, on the basis that it would not be conjoint appointment.  The MAAC agreed with that, and recommended that Dr Smee be appointed.

 

Although, in my opinion, this process was open to criticism on the basis that, because the position to which Dr Smee was appointed had not been advertised (it being quite different from the position which had been advertised) the equal employment opportunity guidelines of the Area Health Service had been breached, I do not find that Dr Bearham recommended that the MAAC adopt that course through any improper motives.

 

I accept that his concern was to stabilise the management of the Department, after a long period of conflict and instability, by the appointment, finally, of a permanent Director.  I accept that he had reached the conclusion, on reasonable grounds, that it would not be sensible, at least in the short term, to re-advertise nationally and internationally for a “conjoint” position, as originally advertised.

 

The events following the recommendation from the Medical Appointments Advisory Committee on 12 December 1994 that Dr Smee be appointed to the position of Director

 

In December 1994, the applicant wrote to Mr W Lawrence, the Chief Executive Officer of the (then) Eastern Sydney Area Health Service in relation to the recommendation.  The letter (Exhibit 20) was 8 pages long.  I will not attempt to summarise it.  In essence, however, the applicant had two principle concerns about what had happened.  These were:

 

1.         The position to which Dr Smee had been appointed had not been advertised - thereby denying to those who might have been qualified for the position (as appointed), but who might not have been qualified for the position as advertised, the chance to apply for the position.  This was, the applicant asserted, a breach of the Area Health Service’s policy guidelines.

 

2.         By appointing Dr Smee to a position which was essentially only managerial and clinical, without the necessity for a strong background in clinical and basic research, and on the basis that it was a management position and not a “conjoint” appointment with the University of New South Wales, the Area Health Service had “downgraded” the status of the position.  This, the applicant asserted, would weaken the position of the Department overall.

 

Dr Mameghan also complained.  Initially he did this by way of a letter to Professor Ron Pirola at Prince Henry Hospital dated 19 December 1994, and then by letter to Mr Lawrence dated 4 January 1995.  Dr Mameghan’s complaints were as follows:

 

“1.       The inclusion of two applicants for interview without proper regard for the advertised criteria;

 

2.         The exclusion of at least one applicant, possibly another, from interview who did have qualifications consistent with the advertised criteria;

 

3.         The decision to reconstitute at interview in contravention of relevant Policy;

 

4.         The implications, both short and long term, of such downgrading of the position of Director of Radiation Oncology for our training programs and our staffing levels;

 

5.         The recommendation to appoint someone to this new position without advertisement;

 

6.         The unfair discriminatory action inconsistent with equal employment opportunity principles;

 

7.         The apparent discriminatory action in denying me the appointment on the basis of merit against the advertised criteria.”

 

Mr Lawrence referred the complaints to Mr John Kilkeary, the Director of Corporate Services of the (then) Eastern Sydney Area Health Service.

 

Mr Kilkeary did a thorough examination of the relevant material and the background to the situation, and reported to Mr Lawrence by way of an 18 page memorandum, with lengthy attachments, on 6 March 1995.

 

In Mr Kilkeary’s opinion, the complaints concerning the decision to call the three persons for interview, and the decision not to appoint any person to the position as advertised, could not be sustained.  In particular, he made what was, in essence, the same point as Dr Bearham, namely, that it was quite appropriate to grant “courtesy” interviews to applicants, even though it seemed that they would not succeed in their application for a position.

 

In relation to the decision by the MAAC to recommend that Dr Smee be appointed to a newly constituted (unadvertised) position of Director, on a non-conjoint basis, for 3 years, Mr Kilkeary said that he felt that that could “be defended”.

 

Despite that view, Mr Kilkeary went on to say in his report:

 

“Notwithstanding these points however, I think a more fundamental question has to be addressed.  That is, is it reasonable to expect that an applicant who applied for an advertised position would expect that if an appointment were not made that an announcement would be made making an appointment to a position with different criteria?  I think the answer is no.

 

Firstly, others may have applied had they known the criteria for appointment was less rigorous and the internal applicants may have responded differently to the requirements of the new position.  The complaints lodged by Dr Mameghan and Ms Kardell vindicate this point.

 

It may be that if the new position were advertised either internally or externally that a selection committee may come to exactly the same conclusion.  But that is not the point.

 

The Area Health Service advertises all positions as an EEO employer and I do not believe the recommendation made in this case would been seen as conforming to the Area’s stated policy.”

 

Mr Kilkeary then went on to make some observations regarding Dr Mameghan and the applicant.  It is clear from those observations, and other comments in the body of his report to Mr Lawrence, that he thought that, in all probability, Dr Mameghan and the applicant had put their heads together in relation to the making of their complaints.  It is also clear that he thought that Dr Mameghan and the applicant had made their complaints, at least in significant part, because of their position in what Mr Kilkeary described as “factional dissatisfaction” in the Department.  Mr Kilkeary said:

 

“There is obvious dialogue between the two which suggests that one, if not both, complaints is based on continuing the factional fighting within the Department.”

 

I mention this at this point, because it later became apparent that Mr Kilkeary and others at the senior levels of the Area Health Service and Hospitals Group, regarded the applicant’s perceived role in this factionalism as an important matter.

 

Mr Kilkeary went on to make three recommendations, in paragraph 18 of his report.  These were:

 

“13.1   That the recommendation of the Hospital MAAC to appoint Dr Smee as the Director, Radiation Oncology for a period of three (3) years renewable be not approved.

 

13.2     In lieu thereof the position be advertised internally for a fixed term of three (3) years on the terms and conditions set out in the letter from Dr Bearham to me dated 31 January 1995 (ref Section 8).

 

13.3.    That the Area Health Service collaborate with the Hospitals Group Executive to eliminate the staff conflict which exists in the Department of Radiation Oncology with a view to removing the stigma attached to that department.”

 

Those recommendations were accepted by Mr Lawrence.

 

On 10 March 1995 Mr Kilkeary wrote to the applicant informing her of the Area Health Service’s response to her complaint.  That letter is Exhibit 4.  Mr Kilkeary informed the applicant of the first two recommendations only - they being the only recommendations made in direct response to her, and Dr Mameghan’s, complaints.

 

Mr Kilkeary paraphrased his comments about the correctness of the procedure adopted by the MAAC in deciding to recommend the appointment of Dr Smee to a position that had not been advertised by saying, “whilst this course is open to the Hospital Executive the Area Health Service is concerned that a perception may exist that correct procedure may not have been followed.”

 

Dr Mameghan was also informed, at about the same time as the applicant, of the recommendations.

 

The applicant, shortly after being told of the recommendations, spoke to other people in the Department.  There was nothing wrong with this.  The recommendations were not confidential, and it was the intention of the Area Health Service to advertise internally for the position of Director of the Department of Radiation Oncology.

 

WAS THERE A VALID REASON FOR THE TERMINATION OF THE APPLICANT’S EMPLOYMENT?

 

Section 170DE (1) of the Workplace Relations Act 1996 (“the Act”) is as follows:

 

“170 DE (1) [Termination must be for a valid reason]  An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”

 

Section 170EDA (1) (a) provides that a termination of employment is “taken to have contravened section 170DE (1) unless the employer proves that ..... there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE (1).”

 

The meaning of “valid reason” in section 170DE (1) of the Act.

 

The phrase “valid reason” is not defined in the Act.  However, section 170CB of the Act reads as follows:

 

“An expression has the same meaning in this Division as in the Termination of Employment Convention.”

 

It is therefore necessary to examine the Termination of Employment Convention (“the Convention”) in order to determine the meaning of the phrase “valid reason”.  The Convention is Schedule 10 of the Act.

 

Article 8, paragraph 1 of the Convention is as follows:

 

“A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.”

 

Article 9, paragraph 1 of the Convention is as follows:

 

“The bodies referred to in Article 8 of this Convention shall be empowered to examine the reasons given for the termination and other circumstances relating to the case and to render a decision on whether the termination was justified.”

 

Article 9, paragraph 3 of the Convention is as follows:

 

“In cases of termination stated to be for reasons based on the operational requirements of the undertaking, establishment or service, the bodies referred to in Article 8 of this Convention shall be empowered to determine whether the termination was indeed for these reasons, but the extent to which they shall also be empowered to decide whether these reasons are sufficient to justify that termination shall be determined by the methods of implementation referred to in Article 1 of this Convention.”

 

Article 10 of the Convention is as follows:

 

“If the bodies referred to in Article 8 of this Convention find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate.”

 

It is apparent from the repeated use of variations of the word “justified” in the Convention, that a reason is not a valid reason if it cannot be “justified”.

 

What this means is that a termination of an employee’s employment cannot be for a “valid reason” unless it is “defensible or justifiable on an objective analysis of the facts”. See Kerr v Jeroma Pty Ltd, Industrial Relations Court of Australia, Marshall J, 7 October 1996, unreported, at page 21.

 

It is necessary, therefore, to examine the totality of the circumstances in which the termination of employment occurred.  In a case, such as this, where a multiplicity of allegations and criticisms were levelled at the dismissed employee, merely because one, or some, of those allegations have been proven, (in part or in whole), does not necessarily mean that the termination of employment has been shown to be for a valid reason, or valid reasons.

 

As Parkinson JR said in Fargie v Freedom Foods (Aust) Pty Ltd, Industrial Relations Court of Australia, 14 October 1996, unreported:

 

“For a reason to be relied upon for terminating a person’s employment there must be a proportion between the matter relied upon and the penalty of termination proposed.  When termination of employment is a penalty so out of proportion in response to the conduct complained of, such a termination is unlikely to be for a valid reason.”

 

In other words, if the “penalty” of termination of employment is out of proportion to the seriousness of the conduct complained of, then the termination of employment will not be justifiable, and will not be for a valid reason.

 

On 29 August 1995, following the suspension, with pay, of the applicant on 11 August 1995, Mr Kilkeary, on behalf of Dr John Campbell (the Acting Chief Executive Officer of what by then had become the South Eastern Sydney Area Health Service) wrote to the applicant’s solicitor, Mr William Szekely.  In that letter, a number of allegations were made, and the applicant was requested to respond.  It was made clear that the applicant’s position was in jeopardy if a satisfactory explanation was not provided.  That letter became Exhibit 11.

 

The various allegations against the applicant were broken up under subheadings, which contained, within the general areas covered by the subheadings, a multiplicity of allegations.

 

I will refer to the allegations by using the same subheadings as those in Exhibit 11.

 

The appointment of an unqualified radiation therapist - Ms Ingrid Marsman

 

There was a great deal of detailed evidence concerning this allegation.  It should be made clear from the outset that the evidence establishes that Ms Marsman was not qualified to be appointed to a position within the Hospital as a radiation therapist.

 

But that simple finding of fact does not end the matter.  The initial question, in terms of the applicant’s conduct and performance, is whether the applicant reasonably believed that at the time she arranged for Ms Marsman to be appointed as a radiation therapist in January 1992, Ms Marsman was qualified for that appointment.

 

A subsidiary, but also an important point, is whether the applicant actually had that belief, irrespective of whether that belief was reasonable.

 

It is also necessary to examine the (changing) circumstances in which the applicant continued to maintain Ms Marsman in the position of a radiation therapist.

 

The respondent’s submissions in respect of this allegation are replete with overstatements.  Phraseology such as “reckless indifference to her responsibility as Chief Radiation Therapist”, an allegation of treating the complaints of senior staff “with complete disdain”, an allegation that the applicant’s initial advice that Ms Marsman be appointed “was given with reckless indifference” and that the applicant’s actions “can only be described as wilful misconduct”, were of little assistance to the Court.

 

Ms Marsman was originally employed in the Department of Radiation Oncology in 1976 and 1977.  Before that, she had worked in Germany.

 

For personal reasons, she left the employment of the respondent.  She sought re-employment in January 1992.  At that time, the Department was suffering from a severe staff shortage.  The applicant was, therefore, pleased when a former employee applied for re-employment.

 

I accept the applicant’s evidence that there were three reasons why she believed, in January 1992, that Ms Marsman was appropriately qualified:

 

1.         She had previously been employed in such a position.

 

2.         A reference in Ms Marsmann’s personnel file (held in the applicant’s office) dated 24 January 1978 (Exhibit 72) from Ms Lyons, the applicant’s predecessor as Chief Radiographer, asserted that “Ingrid Marsman has worked in this Department since May 1975 as a qualified radiographer till this date .....”.  The reference went on to say “We would be happy to re-employ her when she returns to Australia”.

 

3.         The Hospital Employees Technical (State) Award (the relevant parts of which are Exhibit 71) defines a radiographer as follows:

 

“ ‘Radiographer’ means a person who has acquired the Certificate of the Conjoint Board of the College of Radiologists of Australasia and the Australasian Institute of Radiography or the Diploma of the Australasian Institute of Radiography or such other qualification as deemed by the Health Administration Corporation to be equivalent”.

 

(Emphasis added)

 

In my opinion, the combined effect of the above factors provided a reasonable basis for the applicant to believe that Ms Marsman was appropriately qualified to be appointed.  In particular, the award provision seems to give the respondent (the successor to the “Health Administration Corporation”) the right to deem qualifications to be the equivalent to those listed specifically in the award.

 

I accept the applicant’s evidence that she believed that, by having appointed Ms Marsman in 1976, the Health Administration Corporation had “deemed” Ms Marsman’s German qualifications to be the equivalent of the specific qualifications set out in the award.

 

This is not to say that the applicant was actually correct in that belief.  In fact, in my opinion, for Ms Marsman to have fitted into the qualification phrase “or such other qualification as deemed by the Health Administration Corporation to be equivalent” it would have been necessary for the Health Administration Corporation (or more precisely its successor) to have actually considered such qualifications as Ms Marsman possessed, and have made a decision.  That did not occur.  However, minds differ, and the wording of the award did not set out the process by which other qualifications would be “deemed....to be equivalent”.

 

After Ms Marsman started work in 1992, Ms Schneider and Ms Harfield objected (to the applicant) to Ms Schneider being employed as a radiographer.  I accept that, from 1992 until and including 1995, Ms Schneider and Ms Harfield raised their objections from time to time with the applicant.  I accept that the applicant always disagreed with Ms Schneider and Ms Harfield.

 

I do not accept, however, Ms Schneider’s and Ms Harfield’s evidence that the way in which the applicant disagreed with them, and rejected their criticisms, was intimidatory, dominating, or hostile.

 

It is probable, in my opinion, that from time to time, over the years, there were some heated discussions involving Ms Schneider, Ms Harfield and the applicant on the subject of whether Ms Marsman should continue to work as a radiographer, and the details of the work she was doing from time to time.

 

In my opinion, it was this situation of repeated disagreements which led, over time, to the deterioration of the working relationship between Ms Schneider and Ms Harfield, on the one hand, and the applicant on the other.  By 1994 that working relationship had degenerated to the point where Ms Schneider and Ms Harfield had strong feelings of hostility towards the applicant.

 

In my view, the applicant was too stubborn and inflexible in the way that she dealt with the objections and criticisms of Ms Schneider and Ms Harfield.  She is a proud woman, and had been Chief Radiographer for a long time.  She should have paid more attention to what they were saying.

 

In June 1992 the Overseas Qualifications Assessment Panel of the Australian Institute of Radiography declined to recognise Ms Marsman’s German radiography qualifications.  The letter said:

 

“Your application for recognition of your Radiography qualifications has been considered and compared against the standard required in Australia.

 

I regret to advise that the academic standard and training undertaken by you are not equivalent to those gained in Australia and therefore not recognised.”

 

The applicant saw that letter shortly after its date of 12 June 1992.  When she saw that letter, it should have rung alarm bells for her.  Apparently, it did not.

 

Instead of reacting to the letter, and taking steps to insure that Ms Marsman was, in fact, properly qualified, the applicant continued to act on her belief that, in employing Ms Marsman in 1976, the Health Administration Corporation had “deemed” Ms Marsman’s German qualifications to be the equivalent of the specific qualifications as set out in the award.

 

In my view, she should not have done that.  It was a mistake.  The mistake was repeatedly, in one way or another, pointed out by Ms Harfield and Ms Schneider.  As it turned out, on the question of Ms Marsman’s qualifications, Ms Schneider and Ms Harfield were right, and the applicant was wrong.

 

The applicant should have advised Dr Smee (who was the Acting Director of the Department) as soon as she became aware in 1992 of the position of the Australian Institute of Radiologists that Ms Marsman’s qualifications were not sufficient.  At that point, the applicant should have realised that, others having questioned Ms Marsman’s qualifications, it was time to refer the matter up the “chain of command”.

 

That said, it is necessary to remember that, despite the refusal of the Australian Institute of Radiography, the applicant believed that Ms Marsman was in fact, qualified to work as a radiographer in terms of the award.  If she did not have that belief, her actions in refusing to accept the objections and criticisms of Ms Harfield and Ms Schneider, and not referring the decision of the Australian Institute of Radiography to Dr Smee, would be far more serious than they actually were. 

 

In 1994 the rules changed.  In particular, the regulations regarding the operation of the radiation treatment machines became such that radiographers could not operate the machines without a certificate from the Environmental Protection Authority of NSW.

 

The applicant became aware in January 1995 that Ms Marsman’s application for a licence from the EPA had been rejected.

 

In my opinion, the applicant should have acted more quickly than she did in response to this information.  Some further criticism can validly be made of her in this respect.

 

From 1992 the applicant ensured that Ms Marsman worked as part of a team, under the supervision of more experienced radiographers.  This was principally because Ms Marsman’s experience at the hospital (in 1976 and 1977) had not been a general experience, and because she had been away from working in the field for such a long time.

 

Nonetheless, I accept that there were the occasional times when Ms Marsman, although not working alone, worked with relatively inexperienced radiographers (although they were qualified).  There is, however, no evidence that any patients were actually put in danger as a result of these infrequent occurrences.

 

Dr Smee gave evidence (which was contrary to what he had said in his statement) (transcript p.2715) that Ms Marsman’s employment from 1992 to 1995 “was not prejudicial to the maintenance of proper standards of patient care” ..... “because she functioned in a supervised position”.

 

I regard that evidence as significant.  It reinforces my view that, because of the way in which she was employed, standards of patient care were not significantly affected by Ms Marsman’s appointment in 1992.

 

I agree with the applicant’s submissions that there is no basis upon which the respondent can assert that the applicant acted with “reckless indifference”.

 

Dr Smee himself became aware, in or about June 1994, of the concerns of the applicant’s immediate subordinates, Ms Schneider and Ms Harfield, as to Ms Marsman’s qualifications.  At about the same time, or, at least, within a few months of that time, the applicant herself advised Dr Smee of the questions regarding Ms Marsman’s qualifications.  Despite this knowledge, Dr Smee took no action.  This puts the applicant’s actions into a different perspective.

 

In my view, although some considerable criticism can be made of the applicant’s conduct and performance in relation to the “Marsman matter”, that criticism is not of a sufficiently serious nature to warrant the termination of the applicant’s employment. 

 

The evidence establishes that the standards of patient care were not significantly adversely affected by the appointment of Ms Marsman.  Furthermore, although Dr Smee was aware of the position of the Australian Institute of Radiography in 1994, he took no action himself for many months.  No action has been contemplated by the respondent to discipline him - indeed, as I understand the matter, no criticism has even been made of him in respect of that. 

 

That the applicant’s conduct in respect of Ms Marsman’s appointment was not sufficiently serious to warrant dismissal was certainly the view of Dr Bearham and Mr Kilkeary when, in March 1995, they decided that this matter, together with other matters, was only sufficient to warrant a “last warning”.

 

Did the applicant “undermine the authority” of Dr Smee in his position as Director of the Department of Radiation Oncology?

 

From the outset, it is necessary to consider whether such an allegation, even if established, could ever amount to a “valid reason” for the termination of the applicant’s employment.

 

There could never be a rule that employees are barred from making criticisms of their superiors or their employers.  Indeed, in certain circumstances, it is possible to envisage a situation where employees would be bound to make such criticisms.  The situation could arise, for example, where an employee became aware that a superior in the organisation for which the employee was working was acting corruptly.  In those circumstances, the employee would have a duty, at least to the employer organisation as a corporate entity, to expose the corrupt conduct.

 

A recent House of Lords case is authority for the proposition that if the business of an organisation is being carried on fraudulently or corruptly that conduct itself would be in breach of the contract of employment between the employer and the employee.  This is because it would be in breach of the implied term that the employer would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee.  See Malik v Bank of Credit and Commerce International S.A. (In Compulsory Liquidation) [1997] 3 WLR 95.  In such a circumstance the employee would have the right to repudiate the contract of employment, and sue for damages.  It follows that the employee would also have the right to expose the fraudulent or corrupt conduct concerned.

 

The question of whether an employee can criticise the actions of an employer, or a superior within the employer’s structure, depends on the particular circumstances of each case.  The question of whether the conduct of an employee in criticising the conduct of the employer is appropriate or inappropriate is also a question of degree, depending on the particular circumstances of each case.  The question of whether even inappropriate criticism by an employee warrants the termination of the employee’s employment is, once again, a question of degree - for it must be remembered that the “penalty” of termination of employment must not be out of proportion to conduct of the employee which the employer complains of.

 

In this context, it should be noted that the days of “master and servant” have disappeared in Australia.  The modern relationship of employer and employee can longer be simply characterised as one of domination and subservience.  In the modern working world, employees are entitled to be assertive.  They are entitled to, in private conversations with fellow employees, to be openly critical of their employer, and of management.  They are entitled to, in private conversations with other employees, to say rude things about their employer and about management.  That sort of behaviour is part of the normal working environment in most workplaces.

 

The allegations concerning the alleged “undermining” of Dr Smee’s authority, as set out in Exhibit 11 (the letter dated 29 August 1995 from the respondent to the applicant in which the respondent set out the multiplicity of allegations in respect of which the applicant’s employment was said to be in jeopardy) were limited to matters which occurred after the appointment of Dr Smee as Director.  The relevant part of Exhibit 11 referred (incorrectly) to this appointment as having been made in May 1995, but nothing turns on that mistake.  The applicant well knew that the appointment had actually occurred on 5 April 1995, and would not have been misled by that error.

 

(a) Did the applicant behave in an openly aggressive way to Dr Smee, and did she “put him down” in conversations?

 

The allegation of “undermining” was split up into two sections in Exhibit 11.  The first section was in paragraph 2(a) of the document, as follows:

 

“Ms Schneider and Ms Harfield have stated that their professional relationship with Ms Kardell deteriorated further with the appointment in May 1995 of Dr Smee as Director.  Ms Kardell it is claimed displayed ‘outrage’ at the appointment and was openly aggressive in her actions towards Dr Smee which made staff ‘uncomfortable’.  Further Ms Kardell is said to have put Dr Smee down in conversation, calling him a ‘Dictator’ and saying uncomplimentary things about him, i.e. ‘he’s irrational’, ‘his language skills are appalling’.”

 

As it turned out, Ms Schneider gave no evidence at all in respect of the allegations in the above paragraph of Exhibit 11.

 

Ms Harfield’s evidence as to the so-called “openly aggressive” behaviour of the applicant to Dr Smee fell considerably short of establishing any sort of aggression, let alone “open” aggression.  Her evidence as to what she considered to be “openly aggressive” behaviour was as follows:

 

1.         The applicant’s body language changed.

 

2.         Sometimes the applicant would “require” Dr Smee to speak to her notwithstanding that he was in a planning session at the time.

 

3.         The applicant would sometimes follow Dr Smee from the session rooms into the planning cubicle asking him questions and demanding his time.

 

4.         The applicant would sometimes say to Dr Smee things like “You are to come here, you are to sign this” and “Don’t leave yet, Bob, I want you to sign this” or, “You have to attend this matter now.  Don’t leave the floor until you’ve seen me”.

 

Dr Smee also gave some evidence about the applicant’s body language and way of addressing him.  He said that after his appointment on 5 April 1995 that sort behaviour was experienced to a lesser extent.

 

The evidence establishes that there had been, over some years, a degree of personal disharmony between Dr Smee and the applicant.  Both the applicant and Dr Smee, in my opinion, did not, at times, behave as politely to each other as they should have.

 

In my opinion, the examples of supposed “openly aggressive” behaviour set out in Ms Harfield’s evidence, and, to a lesser extent, in Dr Smee’s evidence, are nothing more than examples of impolite, or tense, behaviour by the applicant.

 

These sorts of situations occur often enough in workplaces, and the applicant’s behaviour did not warrant the termination of her employment.  Indeed, in my view, although it would have been better for the applicant and Dr Smee to have treated each other with unvarying politeness, to require or expect this would have been to ask the impossible.

 

In respect of the allegations that the applicant “put Dr Smee down in conversation”, I do not regard that as a proper matter for criticism.  Members of staff, even those at a middle management level such as the applicant, are entitled to say rude things about their superiors in private conversations.  The applicant denied using that particular terminology, but I accept that, even if she did not use that particular terminology, she did say, in private conversations, rude and uncomplimentary things about Dr Smee.  Even given that, that sort of uncomplimentary or rude way of describing Dr Smee is, in the modern industrial climate, the sort of terminology that she is entitled to use without fear of repercussion.

 

The respondent has not established that these allegations constitute a valid reason for the termination of the applicant’s employment.

 

(b) Dr Smee’s memo dated 6 July 1995 regarding problems in communication.

 

Paragraph 2(b) of Exhibit 11 is as follows:

 

“On 6 July 1995 Dr Smee wrote a memo to Ms Kardell and the seven (7) other senior radiation therapists in the Department, advising them that he wished to convene a fortnightly meeting with them in order to improve communication and documentation.  It had been brought to Dr Smee’s attention that there were a number issues of concern which had been raised by senior radiation therapy staff, that had not been resolved satisfactorily.  He stated in the memo ‘that there have been some examples recently in relation to the accelerators, the planning area and patient treatment, where improvement in communication could take place’.

 

On 10 July Ms Schneider and Ms Harfield state that Ms Kardell met with senior radiation therapy staff and could hardly control her anger in respect of this proposed meeting.  She demanded to know ‘what have you been doing to each other that Bob is doing this to me?’.  Ms Harfield responded that ‘Dr Smee was only asking for a staff meeting’.

 

Straight after this confrontation Ms Kardell attended the combined staff meeting (a meeting with all senior representatives of sections within the Department).  Ms Kardell completely misrepresented the wishes of the senior radiation therapy staff when she informed Dr Smee and the Committee that these senior staff did not wish to hold a meeting with him in attendance.  Ms Schneider and Ms Harfield were informed of the misrepresentation by a senior nurse Ms Choo.  The had no alternative but to approach Dr Smee and inform him that at least six of the seven senior radiation therapists wanted such meetings convened.

 

Ms Kardell’s memo to Dr Smee dated 18 July, objecting to his decision to initiate this meeting (attached as Appendix 1,) clearly demonstrates Ms Kardell’s insubordination and a total reluctance to follow the directions of the Director of Radiation Oncology Dr Smee.  Subsequently these meetings have been held on a fortnightly basis.  They are reported to be most successful in achieving the outcomes set by Dr Smee.  However, Ms Kardell has openly displayed her hostility at these meetings insisting that minutes be amended to the smallest detail.”

 

It is important to put this allegation in context.  The memo dated 6 July 1995, referred to in paragraph 2(b), became Exhibit 63.  The effect of that memorandum was to implement a significant change in the functioning of the Department.  Up until that memorandum, the applicant had attended what were called “combined staff meetings” as the representative of the radiation therapists.  The “combined staff meetings” were in fact meetings of senior staff, and not general meetings of staff.  See for example Exhibit 78, which is the document containing the minutes of the combined staff meeting on 10 July 1995.

 

The text of Exhibit 63 (which was, it should be remembered, sent to all of the applicant’s senior subordinates) was as follows:

 

“The quality assurance process that we are going through as part of the reaccreditation programme for the Hospital has highlighted the importance of communication and documentation.  There have been some examples recently in relation to the accelerators, the planning area and patient treatment, where improvement in communication could take place.  I thus propose a fortnightly meeting to start with between the Senior Radiation Therapists and myself where these matters can be discussed and appropriate action taken.  The first meeting will be in the small conference room at 11 am on Tuesday, 11th July.  Work schedules should be arranged such that everyone is available at that time for a period of 15-20 minutes.

 

(signed)

Dr R Smee

Director

Department of Radiation Oncology”

 

The applicant was not consulted about the supposed areas where “improvement in communication could take place”.  It is clear that this memorandum was intended to be, and was in fact, a criticism of the applicant.  See the evidence of Dr Smee at transcript p.2692.

 

In my view, it was poor management practice by Dr Smee to circulate a memorandum such as Exhibit 63 to the applicant and her immediate subordinates without first having discussed the matter with her.  It was to be expected that she would regard it as a public criticism of her.  In fact that is exactly what it was.  It was perfectly reasonable of her to be offended by Dr Smee’s actions in circulating the memorandum.  What Dr Smee did was heavy-handed and confrontationist - and, it must be remembered, was in the context of a Department which had a history of conflict.

 

As it turned out, none of the criticisms of the applicant set out in Exhibit 63 can be sustained.

 

(c) Dr Smee’s memo dated 6 July 1995 regarding the breakdown of the RMS on the Clinac Eighteen machine.

 

The communication problem in relation to the “accelerators” (the treatment machines) was further set out in Exhibit 58, which was a memorandum from Dr Smee to the applicant.  That memorandum was as follows:

 

INTERNAL MEMORANDUM

 

To:                  Ms Cynthia Kardell

                        Chief Radiographer

 

From:              Dr R Smee

                        Director

                        Department of Radiation Oncology

 

Date:               6 July 1995

 

Subject:           Breakdown of the RMS on the Clinac Eighteen

______________________________________________________________________

 

Particular importance has been placed in the past on having Record and Verify systems on the accelerators and this in fact has resulted in our purchase of the IMPAC system.  I was thus quite concerned, given the importance of the Record and Verify concept to find out via very indirect means that in fact the RMS on the ‘Eighteen’ had been down for 10 days without my being notified of that event.  There is certainly no point in spending a significant amount of month repairing the Varian system given the imminent arrival of the IMPAC, however, it would have been appropriate to notify the clinicians concerned, particularly myself as Director, that the Eighteen was operating without any monitoring system for a significant period of time.  This problem was heightened by the absence of a senior radiographer on that machine during part of this period.

 

I would thus appreciate your response in writing as to why I was not notified.

 

(signed)

DR R SMEE

Director

Department of Radiation Oncology

 

It was simply incorrect of Dr Smee to say that he found out “via very indirect means that in fact the RMS on ‘Eighteen’ had been down for 10 days without my being notified of that event”.

 

The RMS is a machine which monitors the dosages that patients receive, and helps control the dosage, thereby ensuring they receive the correct dose.  The ‘Clinac Eighteen’ is one of the radiation therapy machines.

 

On the evening of Friday 30 June 1995 the applicant was informed, for the first time, that the RMS on the ‘Clinac Eighteen’ had been out of action since Tuesday 27 June 1995.  She then, virtually immediately, telephoned Dr Smee and informed him of this fact.  Dawne Harfield also telephoned Dr Smee on 30 June 1995 and gave him the same information.

 

The applicant had been sick on Tuesday 27 June and Wednesday 28 June, and did not return to work until Thursday 29 June.  She acted responsibly and informed Dr Smee about her knowledge of the breakdown of the RMS as soon as she knew.  I accept her evidence in this respect.

 

I also accept Ms Harfield’s evidence that she telephoned Dr Smee and told him on 30 June 1995 that the RMS was down.

 

In addition, Dr Smee was physically present on 4 July 1995 when a patient received an under dosing as a result of the RMS on the ‘Eighteen’ being down.  This under dosing is referred to in a Patient Dosing Incident Report which is Exhibit 57.  That report was dated 1 August 1995, although signed by Ms Schneider on 3 August 1995.

 

Furthermore, on 4 July 1995 Kevin Fitzsimmons discussed the breakdown of the RMS with Dr Smee.  Mr Fitzsimmons is one of the principals of Radiation Services Australia Pty Ltd, which is contracted to the Prince of Wales Hospital to maintain the equipment in the Radiation Oncology Department.  I accept his evidence about the conversation on 4 July 1995 with Dr Smee.

 

The above facts were set out in a memorandum from the applicant to Dr Smee dated 8 July 1995. (Exhibit 59)

 

I am satisfied that Dr Smee received that memorandum prior to the combined staff meeting on 10 July 1995.  Dr Smee and the applicant were present at that meeting.  The relevant part of the minutes of that meeting are as follows:

 

“CK queried the proprietary of the meeting called by RS to be held between him and the senior radiographers.  CK said that if there were any problems in radiography they should have been discussed with her first.  She said that just before this head of sections meeting she had met with her senior staff and none of them could suggest why the meeting in question should be called.  She requested that RS provide her with a list of any problems.  RS said that she had not reported the failure of the RMS verify service.  She questioned why other sections had no similar meetings.  RS said that the proposed meeting would look at things he is unhappy with.  He also said that should the need arise similar meetings with other groups will be implemented.  RS also said that these meetings with the radiographers would be held fortnightly and maybe become monthly.”

 

It was simply not correct for Dr Smee to say at that meeting that the applicant “had not reported the failure of the RMS verify service”.  She had reported it to Dr Smee, and had reported it as soon as she could.  Dr Smee had been reminded that she had done that by virtue of her memorandum dated 8 July 1995.

 

It was also not correct for Dr Smee to say in his memo to the applicant of 6 July 1995 (Exhibit 58) that he found out about the RMS breakdown “via indirect means”.  He had been told directly by the applicant and by Ms Harfield.  He had also been told by Mr Fitzsimmons on 4 July.  He was also physically present on 4 July when an under dosing occurred as a result of the RMS being out of service, and was, therefore, directly aware from that incident (in addition to the fact that he had been told in no uncertain terms some 4 days earlier) that the RMS was not functioning.

 

In my opinion, the assertion by Dr Smee at the combined staff meeting of 10 July 1995 (an assertion made, not privately to the applicant, but publicly in the presence of virtually all the other senior staff of the Department) that the applicant “had not reported the failure of the RMS verify service” was deliberately untrue and intended to publicly undermine the applicant’s standing in the department.

 

In my view, the applicant behaved quite properly at the combined staff meeting on 10 July 1995.  She was perfectly entitled, at that meeting of senior staff, to raise the matters that she did, in the way that she did.  In particular, in my view, it was a legitimate response to the memo instituting the meetings between Dr Smee and the senior radiographers (Exhibit 63) to say that “if there were any problems in radiography they should been discussed with her first”.

 

In fact, Dr Smee’s untrue statement that the applicant had not reported the failure of the RMS verify service was, in all probability, an improper attempt to undermine the applicant’s position, and was said as a defensive reaction to the applicant’s criticism of his decision to call the meetings with senior radiographers.

 

I do not accept that at that meeting on 10 July 1995 the applicant “completely misrepresented the wishes of the senior radiation therapy staff”.

 

In saying this, I accept that, at the meeting of the senior radiation therapy staff (ie: the applicant and her senior subordinates) held on 10 July 1995, the applicant expressed her disagreement with the fact that Dr Smee was instituting the meetings with senior radiation therapy staff, said something to the effect that she should have been consulted, and said something to the effect that, in her opinion, Dr Smee was undermining not only her authority, but the authority of the other senior radiographers.  I accept that she did ask for examples of any problems in communication.  I accept that she was very upset, and visibly so.

 

Despite this, in my view, there was nothing improper in her behaviour.  After all, Dr Smee had openly criticised her for her management practices.  As it turns out, those criticisms cannot be sustained.  Dr Smee’s management practice in circulating the memo (Exhibit 63)without first consulting with the applicant was confrontationist and likely to cause the applicant offence.

 

I accept, in essence, the applicant’s evidence as to what occurred at the senior radiation therapists meeting on 10 July.  Her evidence was, in essence, corroborated by Ms Hedges.  It was not contradicted by any evidence except the evidence of Ms Harfield.  For reasons which are set below, where the evidence of the applicant and the evidence of Ms Harfield conflict, I prefer the evidence of the applicant.

 

Before moving from this point, it is necessary to comment on one aspect of the respondent’s submissions.  In the respondent’s submissions (paragraph 53 of the submissions) concerning Dr Smee’s decision to issue Exhibit 63 without first consulting with the applicant, counsel for the respondent said:

 

“in any event whether Dr Smee’s approach be right or wrong, it did not justify Ms Kardell attempting to undermine his authority.  In this regard, Dr Smee was her superior and she had no entitlement to object to his decision .....”.

 

I reject that position.  The applicant had every right to, appropriately, object to Dr Smee’s decision - particularly as it was one that directly affected her.  She did so appropriately.  Firstly, at the meeting on 10 July 1995, and later in a memo dated 18 July, which became Exhibit 64.  It was only natural that, having been publicly criticised for matters which, as it turns out, there was no basis for criticism, she was offended.

 

Because of the importance that the respondent attached to Exhibit 64, both in the case, and in Exhibit 11 (the letter setting out the allegations in respect of which the applicant’s employment was in jeopardy, to which it was attached) I reproduce it here:

 

Memorandum to:        Dr R Smee, Director, Radiation Oncology

 

From:                          Ms C Kardell, Chief Radiation Therapist

 

Date:                           18 July 1995

 

Subject:                       Senior Radiation Therapist’s Meeting

 

Dear Bob,

 

I wish to formally record my objection, as stated at the Combined Staff Meeting held 10 July 1995, to your decision (in your memorandum dated 6 July) to initiate the above meeting.

 

Regrettably you have neither accorded me the courtesy of discussing your intentions nor given me the opportunity to answer criticisms implicit in your memorandum regarding communication between ‘accelerators, the planning area’ etc.  These are both issues which are central to continuing mutual respect for the positions we hold and the things which flow from them.

 

You stated at the Combined Staff Meeting held Monday 10 July that one of the reasons for your decision was the ‘RMS’... that is the (mistaken) belief that I had failed to report its withdrawal from service.  Yet this matter had not even been raised by you with me before my receipt on Friday 7 July of both the written request (dated 6 July) for an explanation, together with the notice of your decision (also dated 6 July).  Other examples of poor communication (by me) were said to include a recent radiation incident, also the subject of a memorandum dated 6 July and received by me 7 July.

 

That is you have used examples of there being poor communication within our group which have little or nothing to do with the group, have no basis or, at your time of writing, are an unknown quantity.  This is not what good communication is about.

 

You again identified your decision as a solution to a specific problem when you replied, at the meeting 10 July, that you do no plan similar meetings with the physicists or nurses.

 

I stated at the meeting 10 July that I had met, immediately before the Combined Staff Meeting, with the senior radiation therapists who were not able to point to anything which could be described as an example of where communication within the group could be improved.

 

Ms Schneider and Ms Harfield did put forth two events for consideration.  They are: (1) the unexpected visit by Varian personnel which had nothing to do with this group (refer written apology from Mr B Judson, Varian Pty Ltd received by you) and (2) the RMS, which as you would now know, was not a reason for complaint (refer advice from D Zavasky dated 10 July).  Finally Ms Hedges mentioned criticism from you that she would not put a patient on the 6MV.  You would now know that Ms Hedges was correct in that we did not (and still do not) have data for use in calculations.

 

As a matter of practice your decision has the practical effect of undermining the position of the Chief Radiation Therapist and consequentially that of the three senior personnel who have an overarching supervisory responsibility in the Department as distinct from the specific responsibility attaching to the major treatment and planning Units.  It provides for a confusion of roles and tears at existing and effective paths of communication.

 

And then finally at the inaugural meeting, you reiterated the same points in relation to the RMS and radiation accidents (still the subject of an inquiry made by you to me, dated 6 July).  You stated the meeting’s objectives to be matters (accreditation etc) which are presently delegated for action by the Chief Radiation Therapist.

 

In conclusion I would like to record my disappointment and make the comment that I consider integrity of purpose to be central to good communication and continuing trust and confidence in your administration.

 

(signed)

Cynthia Kardell

 

Exhibit 64 was annexed to Exhibit 11 as an example of the applicant’s “insubordination and .... total reluctance to follow the directions of the Director of Radiation Oncology Dr Smee” (See Exhibit 11, page 4).

 

It was nothing of the sort.  In fact, in my view, Exhibit 64 was a moderately worded document, appropriately expressing the applicant’s disagreement with both the decision of Dr Smee to initiate senior radiation therapists meeting, and the manner in which he had gone about doing that.

 

The assertion in Exhibit 11 (an assertion maintained throughout the case) that it demonstrates “insubordination” and “a total reluctance to follow the directions of the Director of Radiation Oncology Dr Smee” reveals a management attitude at the senior levels of the South Eastern Sydney Area Health Service which required an unrealistic, and even oppressive, degree of lickspittle subservience.

 

In summary, in my view, the respondent has not made good its claim that, after the appointment of Dr Smee on 5 April 1995, the applicant  “undermined his authority”.

 

The draft letter dated 14 March 1995

 

In its written submissions, the respondent relied upon the applicant’s involvement with this letter as constituting a valid reason for the termination of her employment.

 

A draft letter, bearing the date 14 March 1995, and addressed to Mr Lawrence, (the Chief Executive Officer of the Area Health Service) is Exhibit 2.  That letter was never sent.  I am satisfied that the applicant had a major role in preparing the letter.  It was as follows:

 

“We the undersigned wish to express our deep concern over the above stated decision for the following reasons:

 

*  Internal advertisement is essentially always unfair to all the parties and in the current circumstances doubly so.  It denies, and would be seen to deny, the Department the opportunity to obtain an appropriately qualified person.  It diminishes both the Department’s reputation and that of the successful candidate.

 

*  Adequate and credible academic qualifications in the position of Director of Radiation Oncology are central to the Department’s self image, general morale, public and academic credibility and reputation, future funding and development.  Removing the requirement for academic rank and university affiliation will have serious longterm consequences which will be reflected in general and patient outcomes.  We deplore a decision made with neither consultation nor agreement.

 

*  The decision compounds the problems rather than fixing them.  The circumstances are not pressing in the sense required for the proper exercise of discretion to waive the need to advertise externally and in a real sense the decision discriminates unfairly against the whole of the Department.

 

*  We believe that, rather than adopting the least suitable solution to obtaining a Director, an inquiry should be conducted, by appropriate persons, as to why our Department has been unable to recruit a suitably qualified person as Director.  We realise that such an exercise will require a major effort and time however we consider University linkage and appointment to be of extreme importance to the Hospital’s public profile.  We also feel strongly that any future selection process for Director include substantial and independent input from radiation oncologists.

 

*  We wish to make it absolutely clear that our concern is purely with matters of principle and is not directed toward any individual concerned.  And that the individual identities of the signatories to this document are to be held in strictest confidence.

 

We strongly urge you to recruit for a Chairman/Director of Radiation Oncology at the rank of full professor.”

 

In my view the circulation of such letter, and inviting colleagues within the Department to sign (both of which I am satisfied the applicant did) were entirely proper.  The concerns expressed in that letter were genuine, reasonable, concerns.  They were expressed moderately.

 

It is important to note that the letter preceded Dr Smee’s appointment on 5 April 1995.

 

The applicant’s involvement with the letter did not constitute a valid reason for the termination of her employment.

 

The Public Notice of 23 March 1995

 

The respondent relies upon the applicant’s involvement with this document as constituting a valid reason for the termination of her employment.

 

On 23 March 1995 a document with the heading “PUBLIC NOTICE” was distributed within the Department of Radiation Oncology.  That document became Exhibit 3 in these proceedings and was as follows:

 

PUBLIC NOTICE

 

**********************************************************************

An appointment to the position of DIRECTOR OF RADIATION ONCOLOGY at the PRINCE OF WALES HOSPITAL, SYDNEY, has not yet been made.

**********************************************************************

 

The Prince of Wales Hospital Medical Appointments Advisory Committee made a recommendation 12.12.1994 to appoint - not to the position advertised - but to a position redefined not to require an academic record or university affiliation.

 

The earliest occasion on which it could have been approved by the Eastern Sydney Area Health Service Board was 8 February, 1995.  Radiation Oncology Staff were lead to believe that an appointment had been made.

 

The matter was held back by the Eastern Sydney Area Health Service Executive to consider questions of impropriety raised by concerned staff members.

 

*          Was it a meritorious selection?

 

*          Did the many procedural irregularities alleged contravene Equal Employment Opportunity principles and Anti Discrimination Legislation?

 

*          Were they so serious as to warrant a fresh recruitment process?

 

The Eastern Sydney Area Health Service Executive decided 10 March 1995 to recruit afresh - internally - for a Director of Radiation Oncology without university affiliation.

 

The Eastern Sydney Area Health Service Executive has not made this information public.

**********************************************************************

An appointment to the position of DIRECTOR OF RADIATION ONCOLOGY AT THE PRINCE OF WALES HOSPITAL, SYDNEY has not yet been made.

**********************************************************************

 

The applicant played, at the very least, a major role in the preparation and distribution of that document.

 

That said, we live in an open society, which asserts that freedom of expression, and the right to dissent, are important values.  There was nothing factually inaccurate in the document.  It revealed information which in my view was not confidential - and never said to be.  True, it was agitation, and did, in effect, invite dissent - but there is no reason why employees should not be able to do that, particularly on matters of importance to themselves, and their colleagues.

 

The “Public Notice” did not go too far.  Indeed, the reaction of management to it was surprisingly vehement.

 

The applicant’s involvment in it did not constitute a valid reason for the termination of her employment.

 

The allegations concerning the applicant’s poor management practices and inappropriate dealings with staff

 

Paragraph 3 of Exhibit 11, the part of that document which deals with this allegation, commences as follows:

 

“Ms Schneider and Ms Harfield claim that Ms Kardell over the past twelve months has increasingly displayed unacceptable behaviour at work confronting themselves and other radiation therapy staff at work in an intimidatory and hostile manner.  Examples of this are as follows.”

 

There follows a series of “sub-allegations”, which I will deal with individually.

 

(a) Allegations concerning the applicant’s treatment of Mr Darren Carr

 

This allegation is set out in paragraph 3(a) of Exhibit 11.  It is as follows:

 

“a)          A statement voluntarily tendered by Mr Darren Carr, a radiation therapist, states that he is considering terminating service because of the unacceptable behaviour displayed by Ms Kardell to him over the past 16 months.  In his statement Mr Carr recounts that in May 1994 he was diagnosed with a cancer, Stage 1 Ewings Sarcoma.  The tumour involved his lumbar vertebrae.  Prior to his diagnosis Mr Carr was experiencing severe back pain which he attributed to injury.  He requested that Ms Kardell roster him to the planning area where he found the work caused less discomfort.  Ms Kardell ignored his pleas and rostered him to work in the Treatment Area.  After experiencing excruciating pain he again sought assistance from Ms Kardell.  He reports that at this time a “most extraordinary conversation” took place with Ms Kardell.  She declined the request to roster him to planning stating that she “didn’t believe men who reported severe pain were genuine as men don’t suffer from premenstrual tension”.  She claimed “that women are used to suffering in silence and therefore are less likely to complain about health concerns”.  She further stated “that men in general are wimps and their reports of pain or discomfort can usually be dismissed”.  Ms Kardell ordered him to return to the treatment area.  It was only after Mr Carr sought assistance from the Risk Management Unit at the Hospital (Occupational Health and Safety) that Ms Kardell was forced to relocate him to the more suitable area of planning.

 

Mr Carr claims he did not make a formal complaint at the time because his health deteriorated rapidly.  Following his diagnosis Ms Kardell did not show any remorse for her comments nor was an apology given.  When Mr Carr resumed work after treatment he “feared that Ms Kardell would disallow him working part time if he made a formal complaint at that time”.  Mr Carr was and still is deeply disturbed with the way Ms Kardell treated him as a member of the Radiation Therapy Department”.

 

It is first necessary to note that the allegation refers to what is, in effect, one incident - and cannot rationally be described as “unacceptable behaviour displayed by Ms Kardell to him over the past 16 months” as alleged in the opening section of paragraph 3(a) of Exhibit 11.  The phraseology was an exaggeration, with no factual basis at all.

 

The assertion at the beginning of paragraph 3(a) that the statement in question was “voluntarily tendered” by Mr Carr puts an inaccurate gloss on the circumstances in which the statement came into existence.

 

In fact, according to Mr Carr himself (see transcript p.1446), Ms Meg Schneider asked Mr Carr, shortly before 11 August 1995 (the day the applicant was suspended from duties) if he would prepare a statement of the way in which the applicant had treated him.  Mr Carr went on to say that that request from Ms Schneider was merely the repetition of a request from whoever was handling the matter “from Administration”, and that he now knows that that person was Jill Wawn, who was Mr Kilkeary’s assistant in Human Relations.

 

So, the “voluntarily tendered” statement of Mr Carr was in fact a document which was actively solicited by those in authority in the Area Health Service, prior to the termination of the applicant’s employment.  It is likely that this occurred on 10 August 1995, after Ms Wawn had interviewed Ms Schneider and Ms Harfield.  Ms Wawn was not called as a witness, although present at virtually all of the days of the hearing of this matter, a fact which assists me to make this finding.

 

There is no evidence that “it was only after Mr Carr sought assistance from the Risk Management Unit at the Hospital (Occupational Health and Safety) that Ms Kardell was forced to relocate him to the more suitable area of planning”.  (Emphasis added)  That was another exaggeration in Exhibit 11, with no factual basis.

 

Mr Carr’s evidence was that he spoke to the Risk Management Unit, but that he really had no idea whether the Risk Management Unit had intervened at all with the applicant.

 

The fact of the matter is that, after a conversation with the applicant about two hours after he had commenced work in the treatment area in which he said that the work was causing him too much pain, he was only required to work light duties such as greeting patients, operating the console of the machines and so on - which did not involve lifting patients or anything heavy.

 

The applicant gave evidence that it was she who decided, independently, to ensure that Mr Carr worked these light duties in view of his complaints about his back pain.  I accept the applicant’s evidence - particularly in view of the fact that there is no evidence to the contrary, including no evidence of any intervention from the Risk Management Unit.

 

The immediately above finding of fact places a different perspective on the conversation between the applicant and Mr Carr in which the applicant allegedly spoke unsympathetically to Mr Carr, than would have been the case if the applicant had done nothing to assist Mr Carr.

 

The versions of the conversation given by Mr Carr and the applicant differ.  I accept that the applicant did say something to Mr Carr which could reasonably be interpreted as an unsympathetic response.  I accept that she did say something to Mr Carr to the general effect that women can bear pain to a greater extent than men because of the experience of pain suffered by women as a result of premenstrual tension.

 

In view of the fact that Mr Carr was complaining to the applicant that he was suffering from severe pain, her response was not as understanding as it should have been, and inappropriate.

 

However, even if the Court were to accept Mr Carr’s version of the events completely, it cannot be said that the conduct of the applicant in any way even approaches the degree of improper behaviour which would warrant the termination of her employment.  As noted above, there is simply no evidence to substantiate the allegation set out in Exhibit 11 that there was a pattern of conduct extending “over the past 16 months”.

 

In particular, I do not accept the submissions of counsel for the respondent that, in speaking to Mr Carr in the way she did, (accepting Mr Carr’s version of the events for the sake of the argument) the applicant behaved in a “disgraceful manner”.  Once again that degree of hyperbole goes considerably beyond the facts as established by the evidence, and is unhelpful to the Court.

 

To summarise, I accept the submissions of counsel for the applicant that the applicant’s behaviour “might be regarded as insensitive, or unsympathetic”.

 

Furthermore, after Mr Carr was diagnosed with cancer, the applicant, on Mr Carr’s own evidence, treated him in an entirely appropriate, sympathetic, helpful and understanding way.

 

The respondent has not established that this conduct constitutes a valid reason for the termination of the applicant’s employment.

 

(b) The allegation concerning the applicant’s treatment of Ms Anne Goonan

 

This allegation is set out in paragraph 3(b) of Exhibit 11 and is as follows:

 

“Dr Smee in April this year sought to have a staff representative on the combined staff meeting.  As radiation therapists are by far the largest group within the Department he asked Ms Anne Goonan a Senior radiation therapist, if she would be interested in joining the Committee.  Ms Goonan agreed.  Ms Kardell upon learning of her nomination, summonsed Ms Goonan to her office and closed the door.  An action, it is claimed by Ms Goonan that Ms Kardell often resorted to and which she and other staff members understood by that action, that they ‘were in for a grilling and often reduced to tears’.

 

Ms Kardell began the ‘interview’ stating that ‘she was very unhappy with Ms Goonan’s nomination as staff representative as it would undermine her (Ms Kardell’s) authority’.  Ms Kardell then gave her to read confidential correspondence from herself (Ms Kardell) to the Chief Executive Officer relating her complaints concerning the appointment of Dr Smee as Director.  Ms Goonan felt humiliated by this disclosure which she believed was none of her business.  As a result of these actions Ms Goonan felt intimidated by Ms Kardell’s actions and under duress not to accept the nomination.  Ms Goonan advised Dr Smee that she was unable to accept the nomination, preferring not to give him the reason for her decision although he enquired”.

 

From the outset, it should be noted that it is my opinion that, even if all of the allegations set out in the above part of Exhibit 11 were made out, this would be a relatively trivial matter, and would not amount to inappropriate conduct on behalf of the applicant at all.

 

Furthermore, Ms Goonan gave evidence that, but for this particular conversation with the applicant, her dealings with the applicant have always been calm and professional.  Ms Goonan also gave evidence (transcript  p.1471) that this particular conversation with the applicant was out of the ordinary in that the applicant normally spoke to her in a manner which was “quiet and calm”.

 

The allegation that the applicant gave Ms Goonan “confidential correspondence” to read has not been substantiated.  Ms Goonan was unable to remember what the document was that the applicant gave her, and the applicant’s version of what the correspondence was does not fall into the definition of “confidential”.

 

When it comes down to it, in view of the cross-examination of Ms Goonan in which she accepted a great deal of the applicant’s version of this particular conversation, what actually happened was that the applicant was upset that Ms Goonan had (without the applicant being consulted) been invited to the combined staff meeting as an “alternative” representative for the radiation therapists - an invitation which the applicant perceived (in my view correctly) as an undermining of her position by Dr Smee.

 

Ms Goonan did not give evidence she had been “intimidated” as a result of this conversation.

 

She did give evidence that she felt that the applicant was acting in a “hostile” manner to her, but, in my view, this interpretation by Ms Goonan was incorrect.  Any anger or annoyance that the applicant expressed (and I accept that she was clearly angry and annoyed) was not anger and annoyance at Ms Goonan, but anger and annoyance at Dr Smee.

 

In my view, the respondent has not established the facts of the allegation set out in this particular part of Exhibit 11 - and, even if the respondent had done so, the alleged behaviour of the applicant would not have warranted the termination of her employment.

 

(c) The allegation concerning the applicant’s treatment of Ms Sandra Rayner

 

The allegation concerning this aspect of the case is set out in paragraph 3(c) of Exhibit 11, and is as follows:

 

“In an unsolicited statement a senior radiation therapist, Ms Sandra Rayner, claims Ms Kardell has often asked her to ‘report’ on the activities of Ms Harfield.  Ms Rayner states that on 4 August 1995 Ms Kardell asked her via a telephone conversation to ‘keep tabs on Ms Harfield and report all she says and does’.  Ms Rayner found these instructions ‘completely out of line’.  Further, she considered such requests as ‘inappropriate, counterproductive and destructive’.  Ms Rayner believed that Ms Kardell wanted her to ‘spy’ on Ms Harfield, which she felt was ‘detrimental to good working relationships’.  Ms Rayner was so concerned and upset by Ms Kardell’s instructions that she had to seek medical attention.  Ms Rayner was given a medical certificate that states she has ‘severe stress and anxiety with specific phobia abut returning to work’.  Accordingly, she was certified unfit for duty from the 7 to 14 August 1995”.

 

This allegation has not been established.  According to Ms Rayner’s statement, all that Ms Kardell said to her on 4 August 1995 was words to the effect of:

 

“I want you to check that Dawne Harfield is implementing the use of the base plate locking bar as she has been told to”.

 

I do not accept that it was as a result of this rather innocuous request that Ms Rayner became ill.  Even if it was as a result of this innocuous request by the applicant, then no blame can be attached to the applicant for Ms Rayner’s illness - some other factor must have been the cause, underlying or otherwise.

 

(d) The allegation that the applicant refused to allow many issues of concern to senior radiation therapy staff to be discussed in open forum

 

Paragraph 3(d) of Exhibit 11 commences as follows:

 

“Ms Schneider and Ms Harfield claim that Ms Kardell appeared to be unable or unwilling to conduct senior radiation therapy staff meetings where matters of concern could be discussed in a group forum.  Instead Ms Kardell insisted that many issues that senior radiation therapy staff raised could not be discussed in open forum but would be discussed privately in her office, behind closed doors.  Such interviews, they claim, ‘are extremely intimidatory and hostile and effectively gag the individual’.  Ms Schneider and Ms Harfield further claim that they ‘have been continually frustrated in their attempts to have issues of concern raised, discussed and resolved effectively with Ms Kardell.’

 

Examples of issues Ms Schneider and Ms Kardell have attempted to raise are as follows:

 

i)   Ms Marsman’s appointment and competence.  The matters arising from this have been discussed in Item 1 of this letter.

 

ii)  Staff safety issues and poor work practices resulting in staff irradiation (June 1995)”.

 

Ms Schneider and Ms Harfield were two of the senior radiation therapists.  Ms Schneider was the applicant’s deputy, and is now acting in her place.

 

There were numerous examples in which the evidence of Ms Schneider and Ms Harfield differed from that of the applicant.  For reasons which I will set out in greater detail below, I did not find Ms Schneider and Ms Harfield to be impressive witnesses.  Many of the allegations they made turned out to be false.  The evidence of each of them was, at times, contradicted by prior statements they had made.  On some occasions where the applicant’s evidence differed with the evidence of Ms Schneider and Ms Harfield, the applicant’s version was corroborated, whereas their’s was not.  Furthermore, in my opinion, the evidence of Ms Schneider and Ms Harfield was tainted by their personal hostility to the applicant and self-interest - as was their conduct in the crucial period immediately before her suspension from duties on 11 August 1995.

 

I found the applicant to be a careful and honest witness.

 

It follows that, generally speaking, whenever there is a conflict between the evidence given by the applicant and the evidence given either by Ms Schneider or Ms Harfield, I accept the evidence of the applicant.  This aspect of the case is dealt with more fully below.

 

Despite the allegations set out in Exhibit 11 that both Ms Schneider and Ms Harfield claimed they had been “continually frustrated in their attempts to have issues of concern raised, discussed and resolved effectively with Ms Kardell” Ms Schneider gave evidence of one matter only involving her being discouraged by the applicant from raising it in an open forum - namely, Ms Schneider’s reservations about the qualifications of Ms Marsman.

 

Furthermore, neither Ms Schneider nor Ms Harfield gave any evidence of any specific examples of the applicant forcing issues to be discussed privately in her office, in circumstances that were “extremely intimidatory and hostile and effectively gag the individual”.

 

The only conclusion that the Court can reach from the lack of such evidence is that Ms Schneider and Ms Harfield did make the general allegations to the hospital and Area Health Service, as set out in the opening words of paragraph 3(d), but did so in a situation where those allegations were simply untrue.  The respondent then repeated the general nature of the allegations to the applicant in paragraph 3(d) of Exhibit 11.

 

In relation to the allegation concerning Ms Marsman, I do not accept that the applicant yelled at Ms Schneider and Ms Harfield when they attempted to raise their concerns as to the lack of Ms Marsman’ qualifications.  In my opinion, all that happened was that the applicant insisted that the matter should be discussed in private between herself, Ms Schneider and Ms Harfield, rather than at the senior staff radiation therapists meeting concerned.

 

The applicant’s evidence as to what had occurred at the senior staff meeting in June 1994 concerning Ms Marsman was to the effect that after Ms Schneider raised the matter the applicant said “I can’t allow these meetings to become a process whereby we pull people apart”.  The applicant’s evidence was that she would be happy to talk about Ms Marsman after the meeting.

 

The applicant’s evidence was corroborated by the evidence of Bonita Hedges, and by Ms Rayner.

 

Ms Schneider’s initial evidence (her statement, Exhibit 154, paragraph 10) was that at that meeting the applicant had refused to discuss the matter at all.  However, in cross-examination, she admitted that that was incorrect (see transcript p.2139).

 

Ms Harfield’s evidence (her statement, Exhibit 60, paragraph 16) as to what happened at the meeting was at variance with evidence given by the other witnesses.

 

For the above reasons, even putting aside questions of general credit, I accept the applicant’s evidence as to her behaviour at that meeting.

 

It follows that the respondent has not established the allegations that the applicant yelled at Ms Schneider at that meeting and said to her something to the effect of “I will deal with you later”.

 

The allegation, as set out in exhibit 11, has not been established.

 

(e) The allegations concerning the applicant’s attitude and actions in regard to staff safety issues and alleged poor work practices resulting in staff irradiation

 

On 16 June 1995, a junior radiation therapist (Ms Yolanda Espana) was accidentally irradiated when she remained inside the treatment room of the Clinac 1800 machine (to be more precise, in the corridor between the exterior door and the door leading to the treatment room) after the machine had been switched on.  She received an insignificant dose of radiation.

 

However, in accordance with well established principles, every incident in which a person receives a dose of radiation in such circumstances has to be regarded as serious - it is the potential for harm, rather than the actual harm suffered in any particular incident, which is important.

 

There was a great deal of detailed evidence concerning this aspect of the matter.  In my view, it is not necessary to traverse all of it.  A great deal of it was of marginal significance - and much of it was taken up with an attempt by the respondent to show that the applicant’s attitude to staff safety was uncaring and negligent.  That attempt failed.

 

The problem with the door to the corridor leading to the Clinac 1800 machine was as follows.  The machine had a “fail-safe” mechanism which was intended to prevent it going on when persons other than the patient were in the room.  The fail-safe mechanism was a cut-off device which came into operation when the exterior door was open.  When staff entered the short corridor leading to the interior door of the room in which the machine was located they were supposed to push the exterior door open until it “clicked” into place against the wall, by virtue of the operation of a cam, and thereby remained opened.

 

However, sometimes staff went through the door in a hurry, and did not pay attention to whether or not it remained opened.  If they pushed the door up against the side wall too hard it would bang against the wall and bounce back, without “clicking” into place - it would then close automatically, by virtue of the operation of a device which exerted pressure on the door until it shut.

 

On the other hand, sometimes a staff member would, once again probably because he or she was in a hurry, just push the door open a little bit, and continue on.  The door would then close in the same way.

 

Once the door was shut, the “fail-safe” mechanism would not operate - and it would be possible for the machine to be turned on by an operator at the console who was not aware that a staff member was in the room with the patient.  Naturally, in the vast majority of cases, this would not happen, because the operator at the console, being in a position to see the door, would be aware that the staff member had gone through it and was still in the room.  However, the potential for the machine to be turned on was there.

 

I am satisfied that, in addition to the problem with the “normal” operation of the door locking device, from time to time that locking device was broken.  As a result, from time to time, the door would just not remain open when staff members were inside, no matter what the staff member did.

 

There was some dispute in the evidence, particularly between the applicant and Ms Harfield, as to the circumstances and frequency with which the applicant was informed that there were problems with the door opening mechanism.

 

Nonetheless, I am satisfied that, during 1995, the applicant was informed on several occasions that the door opening device was not working properly.

 

The applicant was, of course, not in a position to physically fix the problem herself.  All that she could do was bring the difficulty to the attention of the engineers, and get them to look at it.  I am satisfied that, whenever the fact of the problem of the door was brought to her attention, she acted expeditiously and drew the attention of the engineers to the problem.  From that moment on, in respect of any particular breakdowns with the doors, she had, in my opinion, carried out her responsibilities in a proper fashion.

 

There remains the question of whether or not it was the applicant’s responsibility to ensure that the basic operation of the “fail-safe” mechanism on the door was one that actually worked.

 

In my view, a number of people shared this responsibility.  One of them was the Radiation Safety Officer, Dr. Tony Knittle.  Another was the applicant.  Another was Dr. Smee.  All of them were aware, probably much earlier than early 1995, but certainly no later than about that time, that the device which was designed to lock the exterior door to the Clinac 1800 room open sometimes failed to function.

 

Dr. Smee, despite his own knowledge, took no steps.  It is clear that he had, probably to a greater extent than the applicant because he was the person in charge of the department, a responsibility for the safety of the employees.  Indeed, it was to Dr. Smee, not to the applicant, that Dr Knittle would report, and it was to the Director that Dr Knittle would routinely give radiation safety reports, not the applicant.

 

Following the incident on 19 June 1995 involving Ms Espana, Dr Knittle compiled a report.  The report was compiled in late July and early August, and was given to both Dr. Smee and the applicant on 2 August 1995.  The applicant said that this was the first such report she had ever received.  There was no evidence to the contrary, and what she said in this respect was consistent with the fact that Dr. Knittle reported to the Director, and gave his report to the Director (not the applicant).  I therefore accept that part of her evidence.

 

Despite the apparent seriousness with which the respondent now treats the question of the door locking mechanism, the accusation in the respondent’s submissions that the applicant “buried her head in the sand” in respect of this matter, and the assertion that the conduct of the applicant in respect of this particular aspect of the case amounted (once again) to “wilful misconduct”, it  was not until, at the very earliest, January, or more probably, February, 1996 that anything was actually done to change the door locking mechanism at the entrance to Clinac 1800 room.

 

That fact illustrates the degree of hyperbole in the respondent’s submissions, and puts the applicant’s (shared) responsibility into perspective.

 

There are some subsidiary factual matters in relation to this aspect of the case, as set out on page 6 of Exhibit 11, which should be dealt with.

 

The third and fourth paragraph on page 6 of Exhibit 11 reads as follows:

 

“Ms Harfield claims that prior to the “accident” on 16 June, she attempted to discuss the matter with Ms. Kardell on a number of occasions, but was informed the matter “was being looked into”.  Further Ms Harfield recommended temporary measures to Ms. Kardell e.g. hook and eye latch on the door to hold it open whilst staff were inside.  However, Ms. Kardell “did not like the idea of drilling a hole in the picture wall and she felt also it would not be visually appealing”.

 

After the “accident” the matter was raised at a staff radiation therapy meeting where Ms. Kardell informed the meeting that the “problem was one faced by all Hospitals at some time or other and given our keen young folk they would have to walk quicker or be caught in the room”.

 

I accept the applicant’s evidence that, rather than merely telling Ms Harfield that the matter “was being looked into” she in fact approached engineering services, and ensured that they examined the door.

 

I also accept the applicant’s evidence that she did not say to Ms Harfield that she, the applicant, “did not like the idea of drilling a hole in the picture wall and she felt also it would not be visually appealing”.

 

I also accept the applicant’s evidence that she did not say anything to the effect that the staff had to “walk quicker or be caught in the room”.  No other persons present at such meetings gave evidence to this effect, and the applicant’s evidence, is generally speaking, to be preferred to that of Ms. Harfield.

 

The next paragraph on page 6 is as follows:

 

“The Radiation Safety Officer, Mr Tony Knittle compiled a radiation incident report immediately after the incident and drew to Ms. Kardell’s attention poor work practices in the Department, however, as in the past he claims Ms. Kardell dismissed his concerns.”

 

 

It is simply not correct to say that Dr Knittle compiled the report “immediately” after the incident.

 

There is no evidence that Ms Kardell “dismissed his concerns”.  In fact, the applicant circulated the report to her senior staff soon after she got it on 2 August 1995, and had it listed on the agenda for a meeting.  Her suspension on 11 August intervened.

 

Exhibit 11 goes on to say:

 

“The safety device was repaired in June 1995.  The only action Ms. Kardell took to ensure the future safety of her staff was on 31 July 1995 to note the following “procedure” in Ms. Kardell’s own message book;  “Operators must check that all to assert (sic) that all staff members are outside the room before beaming on - This responsibly (sic) is shared by all staff members of the unit”.  However, this attempt to introduce a safety procedure has never formally been written up as a departmental procedure nor conveyed to staff via meetings, memo’s etc.”

 

The evidence establishes to my clear satisfaction that when the applicant wrote those words in the message book they were merely a reminder to herself of the draft notice that Dr Knittle had suggested.  Dr. Knittle’s evidence supports this version of the events.  Once again, the applicant’s suspension from duty on 11 August 1995 intervened. 

 

Furthermore, it is clear that, far from “dismissing” Dr. Knittle’s concerns, the applicant consulted with him and tried to work out the appropriate terminology for a notice to be placed at the operating console.

 

It should also be noted that this particular aspect of the case was expressed in Exhibit 11 to be one “example” of “issues Ms Schneider and Ms Harfield have attempted to raise”, but in respect of which the applicant acted in “an intimidatory and hostile manner” to them, and thereby “frustrated” them “in their attempts to have issues of concern raised, discussed and resolved effectively with Ms Kardell.”

 

I do not accept that allegation.  In my opinion, the applicant discussed the difficulties with the operation of the door in a perfectly normal manner with Ms Harfield and Ms Schneider.  Indeed, no evidence was given at all that the applicant behaved in an intimidatory or hostile manner when the issue of the door was raised with her by Ms Harfield, Ms Schneider, or anybody else.

 

In my opinion, the respondent has not proven that the applicant’s conduct or performance in relation to the door to the Clinac 1800 room was such that it could justify the termination of her employment.

 

Furthermore, the respondent has not proven that the applicant’s conduct or performance in relation to the way she treated Ms Schneider and Ms Harfield in respect of this issue was such as to justify the termination of her employment.

 

(f) The allegation that the applicant did not properly and professionally check treatment calculations in respect of a patient on 4 August 1995

 

On 4 August 1995, Ms Leane Elich, a relatively junior radiation therapist, was about to treat a patient on a newly installed machine - the Pantac Therapy machine.

 

In her statement Ms Elich says this:

 

“The patient was to be treated with a single dose of radiation and accuracy is important.  In accordance with normal practice I reviewed the calculations before having them checked by a senior radiation therapist.

 

When checking I noticed that the calculations were based on a 10 x 10 x 30cm FSD applicator rather than 10 x 10 x 50cm FSD applicator which was available for Pantac Therapy machine.

 

I took the planning data sheet and the patient’s treatment sheet to Cynthia Kardell and we had a conversation as best as I can recall to the following effect:

 

I said:              “These calculations have been based on a 30cm applicator not the 50cm applicator.”

 

She said:          “Yes I can see that.”

 

I said:              “Can you call Tony Knittle to see if it is okay to carry out the treatment.”

 

She said:          “I’ll call Tony Knittle.”

 

Cynthia Kardell then wrote something on the treatment sheet.”

 

What the applicant wrote on the treatment sheet is as follows: (see Annexure “A” to Ms Elich’s statement, Exhibit 130):

 

The data available is provisional only and requires considerable extrapolation or an acceptance of the nearest available value.  On this basis - the calculation is correct.”

 

At the time, the acting Chief Physicist was Mr Alex Rose.  Ms Elich approached Ms Harfield, and they approached Mr Rose.  Mr Rose did some calculations, and he calculated that the patient had received 8% less than the radiation dose which had been prescribed by the doctor.

 

I accept the respondent’s submission that the data was available which would have allowed the applicant to properly check the calculations.  I accept, therefore, that the respondent has proven that the applicant did not properly check this particular calculation.

 

If the gravamen of the allegation against the applicant in this particular respect was that patient safety had been jeopardised as a result of her conduct, (which it is not) I would find (as I do) that the applicant’s conduct in this respect was, although not up to the standard required, not of a sufficiently serious character to warrant the termination of her employment.

 

However, the gravamen of the allegation in respect of this incident, as set out on page 7 of Exhibit 11 is, once again, in the context of the general allegation of poor working relationships with junior staff, and the applicant’s alleged conduct of confrontation, intimidation and hostility.

 

The conduct of the applicant in this respect was nothing of the sort.

 

True it is that in her statement, Ms Elich said:

 

“I have filled out a Patient Dose Incident Form report, delivered to Dr. Smee and discussed the incident with him.  I was afraid about making the report because I had to identify Cynthia Kardell as the person who checked and approved the calculation.  I felt that she would think that I had gone behind her back and my relationship with her would be difficult.”

 

However, there is no evidence as to any conduct of the applicant which would give rise to a rational basis for Ms Elich to feel this.  As there is no evidence of any conduct of the applicant giving rise to a rational basis for Ms Elich to have these feelings, I do not hold those feelings of Ms Elich against the applicant in any way.

 

Finally, Exhibit 11 alleged that Ms Elich (although she was never named in Exhibit 11) felt that “her life would be awful at work”.  Her evidence fell far short of that.

 

(g) The allegation that the applicant has consistently resisted attempts to improve the final checking processes of patient treatment protocols.

 

Paragraph 3(d)(iv) of Exhibit 11, on page 7 of that exhibit, sets out this allegation.

 

It is as follows:

 

“Ms Schneider further claims that Ms Kardell has consistently resisted attempts to improve the final checking process of patient treatment protocols which Ms Kardell has claimed is her (Ms Kardell’s) responsibility.  Ms Schneider claims that it is acceptable practice to commence a patient’s treatment prior to a final check of the treatment protocol, however this must be undertaken within the first week of treatment.  Ms Schneider claims that she has often raised concerns with Ms Kardell about the delay in the final checking of treatment protocols but thus far Ms Kardell has resisted attempts to improve this final checking process.  Ms Schneider claims that errors have been found in the final week of a patients treatment which is often too late to take corrective action.”

 

The only evidence in respect of this matter is to be found in paragraph 14 of the statement of Ms Meg Schneider, which is Exhibit 154.  It reads as follows:

 

“One of these issuing the checking of patient treatment sheets.  This is a standard QA practice within radiation oncology departments.  A patient treatment course will last on average 5 weeks, ie. 25 treatments over 5 weeks.  Quite often treatment sheets would not be checked until the final week or just prior to the final treatments.  At this point if a mistake has been made in calculation it is not possible to deliver the treatment prescribed by the radiation therapist.  Ms Kardell took it upon herself to do the final check of all treatment sheets.”

 

It can readily be seen that the evidence does not substantiate the allegations set out in Exhibit 11.

 

The allegation that the applicant has created a “Hostile Working Environment”.

 

Paragraph 4 of Exhibit 11, (on page 8 of that exhibit), made a number of particular allegations under this general heading.  The paragraph commenced as follows:

 

“Further to the issues raised, Ms Schneider and Ms Harfield claim that Ms Kardell’s recent interactions with them have become so hostile and intimidatory that they feel harassed by her.

 

It is claimed by both that there have been occasions over the past two years in which Ms Kardell’s body language was such that they believed she was about to slap or strike them.”

 

Evidence was produced by the respondent in respect of one incident only in which either Ms Harfield or Ms Schneider believed that the applicant was about to strike them. 

 

In these circumstances, the allegation that there were “occasions (plural) over the past two years” in which this fear arose is, in my opinion, nothing but an exaggeration.

 

The one incident in respect of which evidence was adduced by the respondent was the incident referred to in the third paragraph under the heading “Hostile Working Environment”.  That paragraph reads as follows:

 

“On one occasion twelve months ago, when Ms Kardell and Ms Schneider were heatedly discussing Ms Marsman’s appointment, Ms Harfield felt it was necessary to remain in the room as she believed Ms Kardell was going to strike her colleague.  Ms Kardell, it is claimed, grabbed Ms Schneider’s arm and had to be told to let go.  Ms Kardell finished the discussion yelling “I will tell you what you will do and I tell you she (Ms Marsman) is qualified”.

 

Despite Ms Schneider being the apparent victim of Ms Kardell’s behaviour in this incident, she gave no evidence at all of it having occurred.  If the incident had occurred, it would have been an incident involving actual physical violence committed by the applicant (Ms Schneider’s immediate superior in the workplace), coupled with grossly improper behaviour, such as yelling at her.  It is, in my opinion, extremely unlikely that Ms Schneider would have forgotten such an incident.  This strongly suggests that it simply never happened.

 

Ms Harfield gave evidence in paragraph 29 of her written statement (exhibit 160) about this incident.  Some parts of that paragraph were excluded from evidence on the basis that the allegations contained in that paragraph were never put to the applicant, either in Exhibit 11 or when she gave evidence.  The allegations in Ms Harfield’s statement, in the final form of paragraph 29, are as follows:

 

“About a year before Cynthia Kardell left the hospital I recall an afternoon when I went to the planning area to see Meg Schneider.  As I approached the planning area I heard loud voices.  I went into the planning session room to see Cynthia Kardell and Meg Schneider.  Meg Schneider was packing up her things to go home.  Cynthia Kardell said to Meg Schneider words to the effect:  ‘You’ll do what I tell you to do.  I employ Ingrid Marsman not you’.  Meg Schneider then moved to the simulator and turned it off.

 

Meg Schneider then walked towards the door.  I then saw Cynthia Kardell grab Meg Schneider’s arm.  Meg Schneider moved to pull her arm away and said ‘Don’t’.  Cynthia Kardell then let go of Meg Schneider’s arm and Meg Schneider left the room with me.”

 

It can readily be seen that the factual allegations made by Ms Harfield differ from that set out in exhibit 11.  In particular, the words that the applicant allegedly said to Ms Schneider to the effect of “You’ll do what I tell you to do.  I employ Ingrid Marsman not you”, were said by the applicant (according to Ms Harfield’s statement) before the applicant grabbed Ms Schneider’s arm.

 

On the version in Ms Harfield’s statement, the incident ended with Ms Schneider pulling her arm away from the applicant, saying “Don’t”, the applicant then letting go of Ms Schneider’s arm, and Ms Schneider and Ms Harfield leaving the room together.  On the version in Exhibit 11, the words “I will tell you what you will do and I tell you she (Ms Marsman) is qualified” finished the discussion.

 

The inconsistencies between the sequence of events as set out in exhibit 11 and the sequence of events as given by the only witness called by the respondent who gave evidence about this particular incident tend to suggest that the incident did not occur - or that, if some incident did occur, it was not of the same nature as either that alleged in exhibit 11 or that alleged by Ms Harfield.

 

On 10 August 1995, the day before the applicant was suspended from duties, Ms Harfield handed in a written resignation.  On that day she had a lengthy interview with Ms Wawn.  The applicant’s legal representatives had access to the notes made by Ms Wawn at that meeting - although they did not go into evidence.  Ms Harfield was cross-examined by counsel for the applicant as to what she said to Ms Wawn at that meeting.  She agreed (transcript page 2307) that, at that meeting with Ms Wawn, she did not say anything to Ms Wawn about the incident in paragraph 29 of her statement, concerning the applicant grabbing Ms Schneider’s arm.

 

I regard that as a significant omission.  It tends to suggest that the incident never occurred.

 

The accumulation of the above factors, in my opinion, is sufficient to resolve any controversy in favour of the applicant.  I accept her evidence.  I do not accept that such an incident occurred - and I make this finding on an analysis of the evidence, without having to take into account my assessment of the general credit, as a witness, of the applicant or Ms Harfield.

 

Furthermore, as I have already said, for reasons given below, generally speaking, where there is a conflict in the evidence between the applicant and Ms Harfield, I accept the applicant’s version.  I should add, at this point, that my inability to accept Ms Harfield’s allegations in respect of this aspect of the case is a matter which I take into account, adversely, on her general credit as a witness.

 

The next three paragraphs under the heading “Hostile Working Environment” on page 8 of exhibit 11 were as follows:

 

“Following this incident and other confrontations in staff meetings they both report that they believed they could not raise any issue of concern, without it being dismissed by Ms Kardell and then incurring a personal attack on themselves.

 

In order to avoid confrontation Ms Harfield, for the past six months has resorted to ‘evasive action’ preferring to use the back stairs so that she would not pass Ms Kardell’s office.  At times she reported not seeing Ms Kardell for weeks on end and contact was via message or telephone.

 

During this period there were numerous instances where they were both summonsed to Ms Kardell’s office.  If they were not available immediately Ms Kardell would send a junior member of staff to fetch them.  Once in Ms Kardell’s office, the door would be closed and she would proceed to “lecture” them.  These “lectures” they believe were almost psychoanalytical, in that their personal lives were discussed, analysed and criticised for no apparent reason.  Ms Kardell they claim said it was ‘a lateral extension of work.’”

 

There was simply no evidence adduced at all by the respondent in respect of the allegations in the above three paragraphs.  The source of the allegations must have been Ms Harfield and Ms Schneider.  The factthat some words are in quotes in the paragraphs concerned strongly suggests that they were the words of Ms Schneider and Ms Harfield.

 

In my opinion, these paragraphs reflect exaggerated and untrue allegations made by Ms Schneider and Ms Harfield to the hospital and Area Health Service.  The fact that such allegations were made by them is a matter which I take into account, adversely, on their general credit as witnesses.  It demonstrates bias and hostility towards the applicant, and shows that they are persons who, at the time they made the allegations, were prepared to be untruthful.

 

The second allegation in respect of which some evidence was adduced in the respondent’s case is that set out on page 9 of exhibit 11, still under the heading “Hostile Working Environment”.  The first five paragraphs of that page concerning this allegation, and the reaction (by way of resignation) of Ms Schneider and Ms Harfield to what, they say, occurred, are as follows :

 

“On 9 August 1995 Ms Schneider had another encounter with Ms Kardell where she felt so intimidated by her behaviour that she could not converse with her any more.  The situation arose when Ms Kardell ‘confronted’ Ms Schneider at her workplace in the planning area.  Ms Kardell, it is claimed, demanded that she “stop what she was doing immediately.”  Although Ms Kardell could see that Ms Schneider was busily involved with a patient treatment plan.

 

Uncharacteristically, Ms Schneider told Ms Kardell “to go away”.  She felt that she was forced to this because of Ms Kardell’s aggressive behaviour in standing over her and her demanding tone of voice.  Ms Schneider was so intimidated by Ms Kardell’s behaviour that she believed she had no alternative but to leave the room,  which she did.

 

Ms Kardell followed Ms Schneider down the corridor yelling “you work for me, you will do as I say.”  As Ms Schneider continued walking, Ms Kardell then demanded to know where she was going.  Ms Schneider did not reply but left the Hospital grounds in what she described as a very “distressed” state.  She returned half an hour later to her workplace.

 

That evening Ms Schneider came to the conclusion that she should no longer tolerate working in such a hostile environment and it was futile to believe that it could be resolved whilst Ms Kardell remained as Chief Radiation Therapist.  Accordingly, she made the decision to resign.

 

Ms Harfield upon hearing of Ms Schneider’s decision decided that she too had suffered enough.  She felt that “for the past two years her work ethics had been compromised, her creativity stifled and her job satisfaction diminished to such an extent by Ms Kardell’s behaviour” that she also decided to resign.  Both Ms Schneider and Ms Harfield claim that they will have little difficulty in being offered similar positions in a Radiation Oncology Department in New South Wales”.

 

Ms Schneider gave evidence about this alleged incident.  That evidence is (in part) contained in her statement (Exhibit 154), in paragraphs 17, 33, 34, and 35.  In paragraph 17 of her statement she said this:

 

“My last discussion with her prior to my tendering my resignation deteriorated to such an extent that my reaction was to tell her to go away.  At the time I was involved in my work when she demanded that I stop what I was doing and give her my attention.  She was so aggressive and intimidating that when she would not go away I got up and left.  As I did this she followed me up the corridor yelling that I worked for her and that I would listen to what she had to say.  I felt so intimidated that I had to leave and get away from her”.

 

In paragraph 35, she elaborated on this.  She said:

 

“When Ms Kardell interrupted me in the course of my duties on 9 August 1995 she saw fit to throw a copy of the relevant patient dosing incident report at me and said to me in an aggressive tone words to the effect “what’s wrong with this?” I then said to her words to the effect “I can’t see anything wrong with it”.  At no time did Ms Kardell indicate to me what was wrong with the information that I had placed on the form and it was not until later that I realised that I had made a mistake, ie that the RMS had not been available for the treatment of a patient on 30 June 1995 because it had apparently been taken out of service on 27 June 1995.  In this regard I categorically deny the allegation....... that I had been willing to provide wrong advice on this patient dosing incident report for the purpose of wrongly sheeting blame home to Ms Kardell”.

 

The “patient dosing incident report” referred to above became exhibit 57A.

 

Initially, in her oral testimony, Ms Schneider repeated, in essence, the version of events as given in her statement.

 

In cross-examination, the applicant’s version of what had occurred between herself and Ms Schneider on 9 August 1995 was put to Ms Schneider.  During that cross-examination, in adopting some significant parts of the version put to her by the applicant’s counsel, Ms Schneider, ended up giving a substantially different version of the events of 9 August 1995 to that which she had given in her statement, and had adopted in examination-in-chief.

 

I will first set out the applicant’s version of what occurred.

 

The applicant gave evidence that Ms Schneider had “collapsed” two conversations on 9 August 1995 into one.  The first conversion to which the applicant referred was a conversation between herself and Ms Schneider concerning exhibit 57A (the Patient Dosing Incident Report signed by Ms Schneider on 3 August 1995, concerning an incident on 4 July 1995).

 

The second conversation to which the applicant referred was one which occurred, according to the applicant, about twenty or thirty minutes after the first, concerning the repair of a faulty film cassette (films are used in the simulation of treatments to check that the patient will be irradiated correctly).

 

The applicant said, in respect of the first conversation, that she went to see Ms Schneider to discuss the patient dosing incident report with her.  She said that Ms Schneider was standing by the appointments book in her (Ms Schneider’s) work area and writing.  The applicant said that she waited for Ms Schneider to pause, and said to her “Meg, I’ve just got a question about this patient dosing incident form”.  She said that Ms Schneider did not seem to acknowledge her presence, so, after waiting for a little while, she said to her “Well, Meg”.  The applicant said that Ms Schneider grimaced and “had a rejecting look on her face” (transcript, page 578) so the applicant said to her “Look, I’ll put it on your desk.  I’ve written you a message.  Perhaps you could write me your answer.”

 

The applicant said that she left exhibit 57A on Ms Schneider’s desk and went back to her own room.  The applicant said that a very short time later Ms Schneider came into her (the applicant’s) room and walked up to her holding exhibit 57A.  She said that part of exhibit 57A had been highlighted by Ms Schneider, and Ms Schneider said something to her like, “Here it is, I’ve highlighted it for you.  It’s plain English, you should be able to make sense of it.”  The applicant said that Ms Schneider was fairly abrupt, put the document down in front of her, and turned on her heels.

 

The applicant said that she was in the middle of a telephone conversation at the time, but interrupted that conversation and said to Ms Schneider, as Ms Schneider was leaving the applicant’s room, “Meg, will you please stop and stand for a minute because I’d like to ask you some questions?”  The applicant said that Ms Schneider “had a very fierce look on her face” and said something like, “No, I will not”.

 

The applicant said that she excused herself from the phone call, and went next door to Ms Schneider’s room (their rooms are in the same corridor).  The applicant said that she had exhibit 57A in her hand and said to Ms Schneider, “Meg, you must have realised that the RMS was out of service when you did this treatment?” and that Ms Schneider replied, “It says so, its on there, it’s on the form”.  The applicant said that the conversation continued with her saying to Ms Schneider, “Well, it says here it was not discovered by treaters until time of treatment.  Who are they?”  the applicant said that Ms Schneider replied by saying, “The treaters”.

 

The applicant said that she then said to Ms Schneider, “But, Meg, you must have known that the RMS was down because it was down the week before, so why have you put that statement on there?  Its a nonsense with respect to the information above.” 

 

The applicant said that Ms Schneider then replied by saying something like, “Oh, you said something patronising to Dawn and said “You’ll just have to do as best as you can”, or something”.  The applicant’s evidence was that she then replied by saying, “Well Meg, no, I didn’t say anything like that.  I wasn’t patronising.  I was responding to Dawn’s request for information.  That was on 30/6/95, not on 4/7/95, so you must have known that the RMS was out, so that statement is unnecessary and out of place.” 

 

The applicant said that Ms Schneider “just looked very forbidding and was looking away from me and didn’t want to have anything to do with me.”  The applicant says that she therefore put the document back on Ms Schneider’s desk and said to Ms Schneider, “Perhaps you might like to give me an explanation when you’ve got a moment,” and that she, the applicant, then left (see page 579 of the transcript).

 

At page 613 (and at other places as well) the applicant gave evidence of the second conversation which she says occurred on 9 August 1995.  The applicant said that that second conversation occurred about twenty to thirty minutes after the first one.

 

According to the applicant, the background to that second conversation occurred on 7 August 1995 when Ms Schneider had come into the applicant’s room with a film from a faulty cassette, and said to her, with “eyes flaring” the following words, “A cassette was taken out of service by Dawn and somebody has put it back into service and look at it” - showing the applicant the film from the cassette, which was badly fogged.

 

I add here that a film in a cassette is used for X-rays.  They are used in simulation and for checking in treatment.  The film is contained inside the cassette, which is a metal device with two leaves hinged at the back, which simply opens.  The film sits inside, and the cassette is then closed.  The cassette has screens within it made from stainless steel and lead which attenuate the beam in a particular way to give an image. The cassettes get worn and damaged, and light can then get in through the worn or damaged parts, thereby fogging the film.

 

I continue with the background conversation between the applicant and Ms Schneider on 7 August 1995.  The applicant said that she then to Ms Schneider, “Well, where is the cassette” and that Ms Schneider replied by saying “Its been put away, hidden in the mould room.”  The applicant said that she then said to Ms Schneider, “Well, Meg, that’s not a sensible thing.  If it’s leaking it needs to be assessed and either repaired or thrown out.”

 

The applicant says that Ms Schneider then made a phone call and got a young radiographer in the mould room to bring the cassette up to the applicant’s office.

 

The applicant said she had the faulty cassette repaired and went to speak to Ms Schneider about that on 9 August 1995 - hence the second conversation.

 

The applicant said that Ms Schneider was seated at her desk, checking a treatment sheet.  (ie That the planned treatment for a patient had been correctly worked out).  The applicant said that a clerk (Anne Ryan) was already there standing next to Ms Schneider.

 

The applicant said that she said to Ms Schneider, “Meg, excuse me can I just show you this film please?”, and that Ms Schneider didn’t answer.  The applicant then said to Ms Schneider, “Meg” and Ms Schneider swung around in her chair and glared at her saying, “Can’t you see I’m doing something urgent?”.  The applicant said she replied to Ms Schneider by saying, “Its all right.  I don’t mind waiting”, and that the clerk (Ms Ryan) said to the applicant, “You can go first”.  The applicant said that she replied by saying, “No, this is not urgent I’ll wait,” and that she stepped back out of the way and waited until that task was completed.

 

The applicant said that the work that Ms Schneider was doing was for Ms Ryan to take upstairs, and that when Ms Ryan had left with the completed work, (which must have been the treatment sheet) she, the applicant, then said to Ms Schneider, again, “Meg”.  The applicant said that when she said that Ms Schneider swung back in her chair, faced her desk and picked up another piece of work and started working, with the side of her face to the applicant.

 

The applicant said that she then said to Ms Schneider, “Meg, I really would like you to look at this film.  This is the cassette that you brought me on Monday.”  Ms Schneider then swung around in her chair with what the applicant described as “a very judgmental damming look” and said to the applicant, “I didn’t bring you a cassette”.  The applicant said that she replied by saying, “No, I am sorry, you brought me a film and I got the cassette later”, and that she then produced a film.

 

She said that she said to Ms Schneider, “This is the film from the cassette and it shows the sort of level of fogging.  I put a film in the cassette and I found that out and I have had it repaired.”  The applicant said that Ms Schneider “just ignored” her, merely half turning and giving that fogged film a cursory glance.

 

The applicant gave evidence that she then said to Ms Schneider, “Meg, this is the film that I took that was exposed after the repair.  I think it looks pretty good, what do you think? I’d like you to say that it is all right before it goes back into service”.  The applicant gave evidence that Ms Schneider did not respond to that, and remained sitting at her desk, with the side of her face to the applicant, not acknowledging the applicant at all.

 

The applicant gave evidence that she then said to Ms Schneider, “Meg, why do you think it is reasonable to treat me like this?”.  The applicant said that Ms Schneider then turned in her chair and said, “I suppose you’d like that in writing would you”, to which the applicant replied, “Well if you want to”.  The applicant said that Ms Schneider then swung back around (in her chair) again and that the applicant said to her, “Meg, really, we do have to do our work.  Why do you think its reasonable to treat me like this?”.

 

The applicant gave evidence that Ms Schneider said to the applicant, in what the applicant described as “a very steely voice” the following words, “You’re irrelevant” without looking at the applicant as she said them.

 

The applicant gave evidence that Ms Schneider then swung around in her chair again, stood up, and said, “Now get off me”, walked past the applicant to the corner of the room, unlocked a drawer and took out her purse.

 

The applicant gave evidence that she then said to Ms Schneider, “Meg, I really don’t think that you should be treating me like this.  We do have to get our work done” (or something like that).  And that Ms Schneider replied by saying something like, “I won’t listen to you talk to me like this.  You are not my mother, you’re not my father.” 

 

The applicant said she replied by saying, “But I am your supervisor”.

 

The applicant said that Ms Schneider just ignored her, glared, moved around her down the corridor between the cubicles in the planning area, walked passed Ingrid Marsman, and out into the corridor. 

 

The applicant said that she said to Ms Schneider’s departing back, “Meg, shall I take it that you are going to lunch and shall I look after your phone” and that Ms Schneider turned to the applicant and said to her “fiercely”, the following words, “I suppose you’re going follow me all the way down the corridor are you?”.  The applicant said that the incident ended with her saying to Ms Schneider, “I’ll take it that you’ve gone to lunch and I’ll look after your phone.”  Ms Schneider then left.

 

In cross-examination Ms Schneider agreed that, on 9 August 1995, there had been a conversation concerning the faulty cassette and the film.

 

It is noteworthy that nowhere in her statement, nor in her evidence-in-chief, did she make reference to this conversation.  It is also noteworthy that the allegation in Exhibit 11, to which the applicant was asked to respond, made no mention of this second conversation.

 

Ms Schneider agreed with most of what the applicant said about what I have called the “background” conversation on 7 August 1995, in Ms Kardell’s office concerning the faulty cassette and the fogged film.

 

In cross-examination (see transcript pages 2049 and following) Ms Schneider said that, on 9 August 1995, she was seated at her desk, writing, checking a treatment sheet that was required for a treatment.  She agreed that the applicant said to her “Meg, I’ve just got a question about this patient dosing incident form” or words to that effect.  But she denied that she failed to respond.  Ms Schneider said that she said to the applicant, “I will be with you in a minute”.

 

Ms Schneider also agreed that the applicant then said to her words to the effect of, “Well Meg, look, I’ll put it on your desk, I’ve written you a message, perhaps you could write me your answer.”

 

The applicant’s counsel then put to Ms Schneider, and Ms Schneider agreed, that the general sequence of events was as follows:

 

1.    The applicant came into Ms Schneider’s room.

 

2.    She left the form. (Exhibit 57A).

 

3.    The applicant then left herself.

 

4.    A very short time later Ms Schneider came into the applicant’s room with the form highlighted in part.

 

5.    There was then a conversation in the room.

 

Ms Schneider agreed that she said to the applicant that she had written an explanation, (referring to the part of exhibit 57A which Ms Schneider had highlighted) and that she, Ms Schneider, thought that it was clear what was wrong with it.

 

Ms Schneider then agreed that she left the applicant’s room.  She denied that the applicant said anything to the effect of, “Meg, will you please stop and stand for a minute because I’d like to ask you some questions”, and denied that she, Ms Schneider, refused to stay.

 

At this point I interpose to note that it is clear that the essence of what Ms Schneider said in her statement, and that what had been said in exhibit 11 (namely that the applicant came into Ms Schneider’s workplace, was rude, peremptory and confrontational to her, that Ms Schneider, at that point, was so intimidated that she had to leave the room, that she did so, and that the applicant followed her down the corridor yelling at her, “you work for me, you will do as I say”, cannot stand with what she, to this point, had agreed to in cross-examination.

 

In particular, it was only in cross-examination that Ms Schneider agreed that, far from having to leave the room and flee the premises when “confronted” by the applicant with exhibit 57A, she, instead, took exhibit 57A, after having highlighted a portion of it, back to the applicant’s office, and had a discussion there with her.

 

The applicant’s version of what occurred after the applicant returned to Ms Schneider’s room with the form (the one which had been highlighted by Ms Schneider and left with the applicant in her room - exhibit 57A) was then put to Ms Schneider.

 

Ms Schneider denied virtually all of the conversation that was put to her.  However, Ms Schneider did not deny that she had left the applicant’s room (having left the form on the applicant’s desk) and that the applicant shortly thereafter returned to speak to her in her own workplace.

 

Initially, when she was asked the question, “Well she left the form with you did she not?” Ms Schneider replied “yes”.

 

The following question was, “And she then left the room did she not?” to which Ms Schneider replied “No she didn’t, I don’t think.  Can I just refer to my statement please, to the excerpt?”

 

She then, after having referred to her statement, said that Ms Kardell remained in the room.

 

Ms Schneider was then referred to paragraph 35 of her statement (which is set out above).  In particular, that part of paragraph 35 as follows was read to her, “When Ms Kardell interrupted me in the course of my duties on 9 August 1995 she said to me in an aggressive tone words to the effect what’s wrong with this? I then said to her words to the effect I can’t see anything wrong with it.”

 

Ms Schneider was then asked where that conversation took place and replied by saying, “I think that took place in her office, yes.”

 

That answer clearly contradicted her earlier testimony.  Furthermore, it is simply impossible that Ms Kardell “interrupted (Ms Schneider) in the course of  (Ms Schneider’s) duties on 9 August 1995” if that interruption was supposed to have taken place in Ms Kardell’s office.

 

In my opinion, that answer was not simply an inadvertent error made under pressure during the course of cross-examination.  Taken together with the other inconsistencies in Ms Schneider’s evidence, it illustrates that Ms Schneider was not a witness of truth in respect of this allegation.

 

It must be remembered, in this context, that the allegation in exhibit 11 (and in Ms Schneider’s statement) was that it was that very interruption, and Ms Kardell’s immediately following conduct, that caused Ms Schneider, in effect, to be intimidated and flee down the corridor from Ms Kardell.

 

It was then put to Ms Schneider in cross-examination that Ms Kardell then left the room (after this second conversation in relation to exhibit 57A).  Ms Schneider asserted that the applicant did not leave the room but that the conversation concerning the repaired cassette and the associated film then followed.  (It should be recalled at this point that it was not until cross-examination that Ms Schneider made any reference at all to this further conversation.)

 

Ms Schneider agreed that she was sitting at her desk attending to a treatment sheet when the applicant said to her something like, “Meg, excuse me, can I just show you this film please?”  Ms Schneider agreed that she did not reply to the applicant.

 

When it was put to Ms Schneider that the applicant said to her, “Meg”, and Ms Schneider then swung around in her chair and said, “Can’t you see I’m doing something urgent”, Ms Schneider agreed that she “may have” done and said that.

 

It was then put to her that the applicant then said, “It’s all right, I don’t mind waiting”.  Ms Schneider agreed with that.

 

Ms Schneider agreed that there was also someone else there, a clerical person, (Anne Ryan).

 

It was put to Ms Schneider that Ms Ryan said to Ms Kardell, “You can go first”, and that Ms Kardell replied by saying, “No this is not urgent, I’ll wait” (or words to that effect).  Ms Schneider agreed with that.

 

Ms Schneider then agreed that “Anne did what she had to do and left.”

 

I interpose here to note that Ms Ryan’s evidence, which was not challenged in cross-examination, and which I accept, is that she was indeed there, and that she was there to pick up the treatment sheet that Ms Schneider was working on, in order to take it somewhere else.

 

Ms Ryan’s evidence as to this assumes some significance because, in the very next question, after Ms Schneider had agreed that Ms Ryan had done “what she had to do and left” it was put to her that Ms Kardell then said to her “Meg”, that Ms Schneider then swung back in her chair, faced her desk and ignored Ms Kardell.  In response to that assertion having been put to her Ms Schneider replied by saying, “I was completing the task of checking the treatment sheet”.

 

The next question was, “I am putting to you you ignored her?”, to which Ms Schneider replied, “I completed my task, yes”.

 

Ms Schneider then agreed that she did not pay any attention to the applicant, “while I was doing the checking, yes.”

 

It is clear that Ms Schneider was asserting that she continued to work on the very same treatment sheet that she had been working on when the applicant first arrived and Ms Ryan was still there.

 

That cannot be true.  Ms Ryan took that very treatment sheet with her when she left.  It follows that Ms Schneider’s explanation for apparently ignoring the applicant is untrue. 

 

In my opinion Ms Schneider did, in fact, ignore the applicant’s presence and the applicant’s attempts to speak to her, after Ms Ryan had left - but her motivation for that was simply rudeness to the applicant, rather than the completion of a legitimate task as she (falsely, in my view) asserted in her testimony.

 

In the cross-examination that followed, Ms Kardell’s version of the ensuing conversation about the faulty cassette, its repair, and the various films, was put to Ms Schneider.  She disagreed with a substantial part of that conversation.

 

However, Ms Schneider did agree that the applicant said to her that she (the applicant) had had the faulty cassette repaired.  Ms Schneider also agreed that the applicant showed her both a “before and after” film from the cassette.

 

It was then put to Ms Schneider that the applicant said to her, “Meg, why do you think it’s reasonable to treat me like this?” and that Ms Schneider turned around in her chair and said to the applicant, “I suppose you’d like that in writing would you?”.  Ms Schneider denied that that particular conversation had occurred.

 

I note here that conversation, in particular the applicant’s assertion that Ms Schneider replied by saying, “I suppose you’d like that in writing would you?”, is consistent with the earlier conversation concerning exhibit 57A in which the applicant had asked for a written reply from Ms Schneider in respect of the applicant’s queries concerning exhibit 57A.

 

It was then put to Ms Schneider that the applicant said to her, “Meg, really, we do have to do our work.  Why do you think its reasonable to treat me like this?”.  Ms Schneider denied that.

 

It was then put to Ms Schneider that she then said to the applicant, “You’re irrelevant”.

 

Although Ms Schneider disagreed with much of the conversation that had been put to her, she did accept that, after the conversation about the film, she did say to the applicant, “You’re irrelevant”.  This was the first time that Ms Schneider had said that she had said these words to the applicant.  There was (significantly, in my view) no mention of this aggressive terminology in Exhibit 11, in Ms Schneider’s statement, or in her evidence-in-chief.

 

It was then put to Ms Schneider that she then (after having said to the applicant “You’re irrelevant”) stood up and said to the applicant “Now get off me”.

 

Ms Schneider denied that she had said those exact words but asserted that she told the applicant to get away from her, or words to that effect.

 

Ms Schneider then agreed that she then walked passed the applicant, unlocked a drawer and took her bag out.  Ms Schneider then agreed that she moved pass the applicant down the corridor and out of the planning area.

 

Ms Schneider asserted that the applicant then followed her up the corridor yelling after her that Ms Schneider “worked for her” and that Ms Schneider “would listen to what she had to say”.  She asserted that the applicant yelled to her “You come back, you work for me”.

 

Ms Schneider was then asked if there was any explanation for her failure to make any reference in her statement to the discussion between herself and Ms Kardell on 9 August 1995 concerning the film cassette.  She was unable to give any explanation.

 

Ms Schneider asserts, at least in her evidence as it turned out to be in cross-examination, that that discussion about the film cassette was the last discussion between herself and the applicant on 9 August 1995 - and that it was that very discussion which was the trigger for her resignation.  She agreed in cross-examination that it was a matter of some importance to her.

 

The inability of Ms Schneider to give an explanation for failing to mention the “2nd” conversation - the one about the faulty cassette and the films - in view of what she said was its importance, tends to demonstrate that, in respect of this allegation at least, she was not a witness of truth.

 

It is important to note that, according to Ms Schneider’s evidence as it turned out to be in cross-examination, the final discussion, as a result of which she fled from Ms Kardell down the corridor, was not (as she had said in her statement and her evidence-in-chief) one about exhibit 57A (the patient dosing incident report) at all.  Rather, it was one about the faulty film cassette.

 

That is a significant inconsistency.  Once again, it illustrates that Ms Schneider was not a witness of truth in respect of this allegation.

 

Ms Anne Ryan and Ms Ingrid Marsman gave evidence which corroborated the applicant’s version of the events.  In particular, Ms Ryan was present at the commencement of the “second” conversation at Ms Schneider’s workplace - and denied that the applicant had been aggressive or intimidatory at all in the way she approached Ms Schneider.

 

I note here that Ms Schneider’s evidence about the applicant’s approach to her, (as it turned out to be in cross-examination), was, in essence, to the same effect - contrary to her statement, and contrary to the allegation set out on page 9 of exhibit 11.

 

Ms Marsman’s evidence broadly corroborated the applicant’s evidence.  Ms Marsman was present during the entirety of the second conversation, having gone with the applicant from the applicant’s office to Ms Schneider’s workplace.

 

It was Ms Marsman, who had, for some days prior to 9 August 1995, been conducting an audit of all of the cassettes, in order to make sure that they were not faulty.  It was for that reason that Ms Marsman, having had an active interest in the matter, accompanied the applicant to Ms Schneider’s workplace at the time that the applicant was wanting Ms Schneider to check the repair of the cassette.

 

Ms Marsman gave evidence that the applicant did not follow Ms Schneider down the corridor yelling at her.  Ms Marsman’s evidence essentially corroborated the applicant’s version and contradicted that given by Ms Schneider.

 

In my opinion, Ms Ryan, an employee of the hospital at the time she gave her evidence, was a person with no reason at all to be biased, one way or the other.  Ms Marsman’s evidence had the ring of truth about it.  I accept both of them as reliable witnesses of truth.

 

On 10 August 1995, the applicant sent a letter to Ms Schneider (Exhibit 83) concerning what had occurred between herself and Ms Schneider on 9 August 1995.  That letter was as follows:

 

“Dear Meg,

 

I have asked Bonita to personally deliver this letter as I would like to be sure that you have it.  I would like to be as sure that you will read it.

 

It pains me to have to record the events of Wednesday last however I feel I must (do so).  I want to let you know that I am no longer willing, and nor should I be, to continue to ‘turn the other cheek’ as it were.  It is for you to put your personal differences (whatever they are) to one side and co operate in work activities in a civil and polite way.

 

On Wednesday I wanted to bring two matters to your attention.  They were:

 

1. I was concerned at the apparent inaccuracy of the information provided by you on a Patient Dose Incident Form for a stereotactic treatment delivered on 4 July 1995.

 

2. I wanted to make you part of the assessment of a repaired film cassette prior to its return to service.

 

On the two occasions it appeared to me that you intended to give me no acknowledgment whatsoever.  You kept your back turned, your head averted, busied yourself and simply refused to participate; except to let me know that you thought little of me.  When pressed to explain why in the circumstances you appeared to think it reasonable to be uncivil and unco operative you replied that I was irrelevant.

 

Now I am not sure what you meant by this however I do know that conduct like this is not acceptable in the course of work.  I could see that you were angry and unable to deal with the situation...I do not know why .... however I cannot have you, without explanation, simply terminating the exchange by collecting your handbag and departing the room, or as you did on Wednesday, the premises.

 

I found it very distressing.  We have worked well together for a very long time and I have always (and still do) wanted you to prosper and do well.  I would like to put this episode behind me in the knowledge that you will co operate with civility in order that our work should not suffer.

 

In time perhaps we could talk about it and I would like to think we could.

 

Yours sincerely,

 

Cynthia Kardell

 

cc: Ms B Hedges”

 

When the applicant wrote that letter she had no idea that Ms Schneider, on that very day, was going to use a distorted version of the incident on 9 August 1995 as a pretext for her resignation.

 

The version of events set out by the applicant in Exhibit 83 is consistent with (but, perforce of circumstances, not as detailed as) her testimony.  It amounts to a contemporaneous record of the events.  In my opinion, the consistency with which the applicant has stated her version of the events of 9 August 1995 strongly suggests that her version is the truthful one - particularly when compared to the inconsistency with which Ms Schneider has stated her version (or, more accurately, versions) of the events of 9 August.

 

I accept the applicant’s version of the events and reject the version given by Ms Schneider.

 

I regard my finding that Ms Schneider was not a witness of truth in respect of this (very important) aspect of the case as very significant on the question of her general credit as a witness.

 

As a general rule, whenever there is a conflict in the testimony between that given by the applicant and that given by Ms Schneider, I prefer the evidence of the applicant.  I regard the applicant as a witness of truth - I cannot, unfortunately, say the same about Ms Schneider.

 

In my opinion, Ms Schneider twisted her account of the conversations between the applicant and herself on 9 August 1995 in order to present to the hospital a version of events consistent with the applicant acting in a confrontational and intimidatory manner to her.

 

In my opinion, she did this to provide a false “justification” for her resignation.  She did this in order to manufacture a situation where, in the circumstances, the hospital would be forced, in effect, to choose between herself and the applicant - and would be more likely to react adversely to the applicant’s interests rather than hers.

 

In my view, Ms Schneider’s conduct in making many of the allegations to the hospital and Area Health Service authorities, and much of her subsequent testimony, is a clear case of a person telling untruths, motivated by hostility and self interest.

 

Exhibits 57 and 57A - The Patient Dosing Incident Report

 

Exhibits 57 and 57A assume some importance in this case.  They are different versions of the same document.  Exhibit 57A was the document given to Ms Schneider by the applicant on 9 August 1995 - but the documents are important in other ways.

 

On 4 July 1995 a patient was slightly underdosed.  This happened because the RMS was not in service on that day.

 

The RMS is a computer into which the settings for the treatment machine, and the desired dosage, are entered.  The RMS checks the settings and the desired dosage in order to ensure that they are compatible.

 

As a result of the RMS not being in service on 4 July 1995, the treatment machine (the CL 1800) was set by hand.  Instead of the relevant dial being set at “5.75” it was, in error, set at “5.25”.

 

This error occurred because the person setting the dial misread the instructions on the treatment sheet (exhibit 57B).  The number “5.75” was written on that sheet - but the number 7 was written rather unclearly, in such a way as it could easily be misread as a 2.  The error in the setting of the dial was a simple mistake, and no particular blame should attach to it.

 

The radiation therapist in charge of the giving of the treatment was Ms Schneider.  In accordance with standard procedure, as the patient had not received the correct dose, a Patient Dosing Incident Report was filled out by her.  She did that in early August.  For reasons that were never explained, the report is dated 1 August 1995, but Ms Schneider signed her comments on 3 August 1995.

 

In the section allowed for “Comments from Radiation Therapist” Ms Schneider wrote this:

 

“RMS had been out of service which was not discovered by treaters until time of treatment - single fx. (therefore) dose could not be made up.”

 

Ms Schneider then signed what she had written, and dated it 3 August 1995.

 

In fact, on 30 June 1995 Ms Schneider had used that very same treatment machine, and had on that date discovered that the RMS was out of service.  (See transcript page 2072)

 

The log book on that machine records that, on 27 June 1995, the RMS was not functioning.  Ms Schneider agreed that she would have, on 30 June 1995, have checked the log book to see if there was any information about when the RMS had gone out of service and why.

 

The applicant had found out on 30 June 1995 (in circumstances set out earlier in these Reasons for Judgment) that the RMS was out of service.

 

The applicant knew, from those circumstances, that Ms Schneider had been aware, on 30 June 1995, for the reason that she been unable to use the RMS on that date, that the RMS was not in service.

 

Exhibit 57A has written on it a note, dated 9 August 1995 as follows:

 

“Meg, I do not understand your statement re “which was not discovered” etc.  Please provide an explanation.  Ta. Cynthia”

 

It was Exhibit 57A, with this written request for an explanation, that the applicant gave to Ms Schneider on 9 August 1995.

 

In her statement, Ms Schneider, in reference to her comments on the patient dosing incident report (exhibits 57 and 57A) said “it was not until later that I realised that I’d made a mistake, ie that the RMS had not been available for the treatment of a patient on 30 June 1995 because it had apparently been taken of service on 27 June 1995.”

 

I do not accept that “explanation”.  There are a number of reasons for this.

 

Firstly, the comment on exhibits 57 and 57A is simply that the fact that the RMS had been taken out of service was “not discovered by treaters until time of treatment”.  That comment was a positive assertion of a fact - that is, on 3 August 1995 Ms Schneider said that, on 4 July 1995, her actual state of mind was that she did not then know that the RMS had already been taken out of service.  But that cannot be true - it was only a few days before, on 30 June 1995, that she herself had been unable to use the RMS.  On 4 July 1995, Ms Schneider did know that the RMS was not functioning.

 

Furthermore, in her testimony, in cross-examination (see transcript page 2079 and following), Ms Schneider asserted that between 4 July 1995 (the date of the under-dosing incident) and 3 August 1995 (when she wrote the comments on the patient dosing incident report) she raised the incident with the applicant.

 

That cannot be true.  If she had raised the incident with Ms Kardell between those dates, Ms Kardell would then have surely have reminded her of Ms Kardell’s own knowledge that she, Ms Schneider, had been working with a patient on 30 June 1995 when the RMS was out of service.  Furthermore, Ms Kardell would not have asked for the explanation in the way she did.

 

Furthermore, if Ms Schneider had raised the matter with the applicant between those dates, her assertion in paragraph 35 of her statement that “it was not until later that I realised that I had made a mistake” (ie “later” than 3 August 1995) cannot be true.

 

Once again, Ms Schneider is caught in a web of her own inconsistencies.  I simply do not accept her evidence about this.

 

It is difficult to understand why Ms Schneider has told such a series of untruths about the Patient Dosing Incident Report. 

 

Perhaps the explanation is to be found in fact that in Dr Smee’s memorandum of 6 July 1995 to the applicant (Exhibit 63), which was circulated to Ms Schneider and the other senior radiation therapists, Dr Smee proposed to convene a fortnightly meeting between the senior radiation therapists and himself to discuss problems in communication and documentation.  He said:

 

“The quality assurance process that we are going through as part of the reaccreditation program for the hospital has highlighted the importance of communication and documentation.  There have been some examples recently in relations to the accelerators, the planning area and patient treatment, were improvement in communication could take place.”

 

The example in relation to “the accelerators” was a reference to the underdosing incident recorded in Exhibit 57, and the applicant’s supposed failure to communicate the fact that the RMS had been down.

 

When Ms Schneider filled out Exhibit 57, the Patient Dosing Incident Report, she, in all probability, was aware that Dr Smee had been referring to the incident of 4 July 1995 when he circulated the memo.

 

Forms of the nature of Exhibit 57 automatically go to the committee which was reviewing the quality assurance process.  If the assertion in Exhibit 57 about the treaters not being informed had remained uncorrected, it is probable that, to some extent, Ms Kardell would have been blamed for that problem of communication.

 

The probable reason for the untruthful “explanation” in paragraph 35 is that it was made as a response to the earlier written allegation made to the Area Health Service by Ms Kardell’s solicitors (exhibit 16) that she, Ms Schneider, had been willing to provide wrong advice on the patient dosing incident report for the purpose of wrongly sheeting blame home to Ms Kardell.

 

Ms Schneider’s conduct in relation to the Patient Dosing Incident Report is another matter which I take into account, adversely, on her credit as a witness.

 

Matters concerning the credit, as a witness, of Ms Dawne Harfield and of Ms Meg Schneider

 

Some of these matters have already been canvassed above.  It is therefore not necessary to repeat all of the details.  The matters already canvassed above, in respect of which I have made adverse findings as to the credit of Ms Harfield or Ms Schneider include:

 

1.    The allegation made to the Hospital and the Area Health Service that the applicant refused to allow many issues of concern to senior radiation therapy staff to be discussed in open forum.

 

This allegation, although made to the Hospital and Area Health Service, and repeated to the applicant in Exhibit 11, was simply untrue.  No evidence was called in support of it.  The only matter in respect of which evidence was called upon which it could be submitted that applicant had gagged discussion was in respect of the reservations expressed by Ms Schneider and Ms Harfield concerning the qualifications of Ms Marsman.  In respect of that matter, I have accepted the applicant’s version.

 

In my opinion, Ms Schneider and Ms Harfield made this sweeping allegation that the applicant, in effect, gagged discussion on “many issues” in order to discredit the applicant, and make it more likely that the applicant’s employment would be terminated.

 

2.    The related allegation that the applicant forced issues to be discussed privately in her office, in circumstances that were “extremely intimidatory and hostile and effectively gag the individual.”

 

Neither Ms Schneider nor Ms Harfield gave any evidence of specific examples of this allegation.  I accept that they did make such an allegation to the Hospital and the Area Health Service - but, in the absence of any evidence, the allegation must be regarded as one entirely lacking in substance.

 

In my opinion, the making of that allegation by Ms Schneider and Ms Harfield was an attempt to discredit the applicant in the eyes of the Hospital and the Area Health Service.  That attempt certainly succeeded.

 

The making of this false allegation is a matter which bears adversely on the credit of both Ms Harfield and Ms Schneider.

 

3.    The allegation that the applicant grabbed Meg Schneider’s arm, and said to her words to the effect “you’ll do what I tell you to do.  I employ Ingrid Marsman, not you.”

 

As discussed above, the version given by Ms Harfield in her evidence, and the version of this incident put to the applicant in Exhibit 11 (which version must have been sourced from Ms Harfield) were significantly inconsistent.

 

Furthermore, although, if this incident occurred, it clearly would have been important, on 10 August 1995, when Ms Harfield handed in her written resignation, she had a lengthy interview with Ms Wawn.  Ms Harfield said nothing to Ms Wawn about this supposed incident.  That was a significant omission.

 

As I noted above, the accumulation of those factors strongly suggests that the incident never occurred.  I found as a fact that the applicant’s denial should be accepted.

 

Once again, the fact that I cannot accept Ms Harfield’s evidence in respect of this matter bears adversely on her general credit as a witness.

 

4.    The allegations that Ms Harfield took “evasive action” over a period of six months to avoid the applicant, and that the applicant on numerous occasions “summonsed” Ms Harfield and Ms Schneider to her office, where she would “lecture” them, discussing, analysing and criticising their personal lives.

 

As I noted above, there was simply no evidence produced at all by the respondent in respect to these allegations.  It is clear that the source of the allegations must have been Ms Harfield and Ms Schneider.

 

As I found above, these allegations were untrue.  The fact that Ms Harfield and Ms Schneider made them to the Hospital and to the Area Health Service demonstrates bias, and hostility towards the applicant, and suggests that they are witnesses who are prepared to be untruthful. 

 

5.    Ms Schneider’s allegations concerning the incident on 9 August 1995, which I regard as having been made out of hostility and self-interest, and a desire to have the applicant removed from her employment.

 

The allegation that the applicant was deliberately sabotaging Ms Harfield’s work by putting faulty film cassettes back into service

 

There is one other matter which I regard as being of some importance on the question of Ms Harfield’s credit as a witness in these proceedings.

 

On 10 August 1995 Ms Harfield told the Hospital and Area Health Service administration that she was going to resign.  She was interviewed by Ms Wawn for at least 45 minutes about that.

 

During that interview Ms Harfield said to Ms Wawn that the applicant was sabotaging her (Ms Harfield’s) work by putting film cassettes used in radiation therapy treatment back into service when she (the applicant) knew the cassettes were faulty.  (see transcript pages 2298 and following, and 2347).

 

This particular allegation made by Ms Harfield was not relied upon by the respondent as a reason for the termination of the applicant’s employment.

 

However, if true, it was a serious matter.  If not true, it falls into the category of yet another serious allegation made by Ms Harfield which cannot be substantiated. 

 

Initially, when she was cross-examined about this matter, Ms Harfield said, (see transcript page 2298 and following) that on three occasions she removed defective cassettes from the Clinac 1800 machine.  She said that she removed the cassette the first time, and that Ms Kardell said that she would look into having it repaired.  She said that the same cassette appeared back on the console a second time, and that it was still defective.  As a result, Ms Harfield removed it again.  She again spoke to Ms Kardell. 

 

Ms Harfield said that she then took the cassette back and put it in the mould room to have further attention done to it, only to find that “the cassette was back in operation with a note across it that Cynthia Kardell had back in service.” (See transcript page 2299)

 

Ms Harfield said that that very cassette (with that note written on it) was still (at the time she was giving evidence on 23 October 1996) in the mould room, and she would bring it to court the next day.

 

The next day she produced a cassette in court, which she said was the cassette to which she had made reference in her earlier testimony. (See transcript page 2333).

 

In subsequent testimony, it became clear that the cassette which Ms Harfield had put in the mould room was put there by her on Friday 4 August 1997, and it was that cassette which was the subject of discussion on 7 August 1995 between Ms Schneider and the applicant.  It was that cassette, and the films produced in it, which were the subject of the second discussion between Ms Schneider and the applicant on 9 August 1995, to which I have earlier referred.

 

The writing on the cassette that Ms Harfield produced to the Court on 24 October 1996 was quite the contrary to that which she had asserted in testimony the previous day.  In fact, Ms Kardell had written on that particular cassette, in red marker pen, in capitals, “NOT TO BE USED”, followed by the date 7 August 1995, and her signature, “C. Kardell”. This writing had a big red box drawn round it. 

 

In cross-examination, Ms Harfield conceded that her assertion to Ms Wawn, and in her earlier testimony, that the applicant had been deliberately putting cassettes back into service which she (the applicant) knew to be faulty, could not be sustained.  Ms Harfield conceded that her assertion that the applicant had repeatedly put the same cassette back into service was merely an assumption. (See transcript pages 2327 to 2333).

 

It was this (clearly baseless) assumption upon which Ms Harfield made the very serious allegation to Ms Wawn referred to above.

 

Although it is tempting so to do, I do not find that Ms Harfield made this particular allegation to Ms Wawn knowing it to be untrue.  The fact of the matter is, in my opinion, that Ms Harfield’s attitude to the applicant, by the beginning of August 1995, was one of hostility and resentment.  Their personal relationship had completely broken down.  Because of that, Ms Harfield was only too ready to attribute malice to the applicant in respect of this matter - where, in fact, none existed.

 

The applicant did not on any occasion return to service a cassette which she knew to be faulty.  The applicant never set out “sabotage” Ms Harfield’s work.

 

In fact, on 4 August 1995 the applicant told Ms Marsman to do an audit of all of the cassettes so that it would be made clear which cassettes were faulty, which cassettes could be repaired, and which cassettes had to be thrown out and replaced by new ones.  As a result of that process, a number of new cassettes were ordered.  This is recorded in the minutes of the senior radiation therapist’s meeting of 8 August 1995 (Exhibit 163).

 

The readiness with which Ms Harfield was prepared to assume grossly improper behaviour on the part of the applicant, indicates such a degree of bias against, and hostility towards the applicant that it reflects adversely on Ms Harfield’s credit as a witness generally in these proceedings.

 

As stated earlier, for the above reasons, whenever there is a conflict between the testimony of the applicant and the testimony of Ms Harfield, I prefer the testimony of the applicant.  Likewise, whenever there is a conflict between the testimony of the applicant and Ms Schneider, I prefer the testimony of the applicant.

 

The resignations of Ms Schneider and Ms Harfield

 

Ms Schneider and Ms Harfield had each informed Dr Smee, early in 1995, that they were contemplating resigning because of their poor relationship with the applicant.

 

Dr Smee took no steps to rectify the situation, even though Ms Harfield and Ms Schneider were important and senior members of his department.  In my view, this was poor management.  Dr Smee, if he had acted appropriately, would have tried to resolve the differences between his senior staff.  He did nothing.  He behaved neither fairly nor sensibly.

 

I will return to the subject of Dr Smee’s management style later in these Reasons for Judgement.

 

I have no doubt that the personal relationship between Ms Schneider and Ms Harfield, on the one hand, and the applicant, on the other, had broken down.  However, that is not to say that it was the applicant who was acting badly, and harbouring feelings of resentment and hostility.

 

It seems to me that the applicant, having been in the job for a long time, was probably, from time to time, a bit high handed with her subordinates.  It is probable, that from time to time, she did not take sufficient account of their views.  An example of this is the way she, somewhat arbitrarily, maintained her views concerning the qualifications and competence of Ms Marsman to work as a radiation therapist in the face of continuing complaints from Ms Schneider and Ms Harfield.

 

But the level of resentment, and even bitterness, manifested by Ms Schneider and Ms Harfield was grossly out of proportion to any conduct of the applicant’s.  The “Hostile Working Environment” (to use the words of Exhibit 11), was one which, upon analysis of the evidence, was not created by the applicant.

 

In my view, the reasons given by Ms Harfield and Ms Schneider on 10 August 1995 for their resignations were untrue.  They knowingly distorted and exaggerated quite minor (albeit unpleasant) conflicts between themselves and the applicant into major episodes of improper behaviour on the part of the applicant, and then used this distorted version of the events to provide a false legitimacy for their resignations.

 

The decision to resign was one that they made together.  In particular, the assertion on page 9 of Exhibit 11 that “Ms Harfield, upon hearing of Ms Schneider’s decision (to resign) decided that she to had suffered enough”, and therefore resigned, is not correct. (See, in particular, Ms Harfield’s evidence at pages 2289 to 2293).

 

DR SMEE’S MANAGEMENT STYLE

 

Considerable reference has already been made in these Reasons for Judgement to some of Dr Smee’s actions as a manager in respect of the applicant.

 

See, for example, my criticisms of Dr Smee in respect of his memo to the applicant dated 6 July 1995 (circulated to the other senior radiation therapists in the Department) regarding problems in communication. 

 

See also the criticisms I made of Dr Smee in relation to his memo dated 6 July 1995 regarding the breakdown of the RMS on the Clinac Eighteen machine, and the comments made by Dr Smee at the subsequent senior staff meeting concerning that matter.

 

In my view, Dr Smee’s actions in respect of the above matters were calculated to undermine and discredit the applicant within the department.  He certainly succeeded in doing that.

 

Even if I were wrong in respect of Dr Smee’s motives for the above actions, it is clear that the sending of the memos, and the subsequent comments at the staff meeting, were heavy-handed and confrontational.  In a department that had been fraught with difficulties and personal conflict for a number of years, any sensible manager would not have behaved in the way Dr Smee did.

 

Dr Smee knew of the possibility that both Ms Harfield and Ms Schneider would resign well before 10 August 1995.  In fact, each of them had spoken to him about that possibility on a number of occasions in the months prior to 10 August.

 

Dr Smee knew what the substance of the complaints were relating to the applicant.  In my view, a sensible and fair manager would have raised these matters with the applicant, in order to obtain her side of the picture.

 

It should also be noted that Dr Smee had discussed with Dr Bearham the possibility of radiation therapists resigning from the department at least four to eight weeks prior to 10 August 1995.

 

Dr Bearham gave evidence (which I accept) that Dr Smee told him that he (Dr Smee) was already discussing the matter with the individuals concerned. (See transcript pages 2440 and 2441).  Dr Bearham gave evidence that he expected Dr Smee, as a manager, to hear both sides of any story regarding a dispute or an issue, and that he also expected Dr Smee to attempt to discuss it with the applicant.  Dr Bearham gave evidence that his advice to Dr Smee included finding out precisely what it was that was causing people to come to him saying they were thinking of resigning and then try and deal with it, and try and deal with it by speaking to “all the players” within the department.  ( See transcript pages 2442 and 2443).

 

Dr Bearham’s advice to Dr Smee was sound, and nothing but plain common sense.  Any sensible and fair manager would have done that.

 

However, Dr Smee did not do so.  He gave evidence (See transcript pages 2720 and 2721) that, although this was an important thing to do, and he should have done it, that would only apply in an “ideal situation” and the circumstances were not ideal.

 

In my view, that particular part of his evidence was an obfuscation - an attempt to explain away what he realised was an obvious failing in the performance of his tasks as a manager in a difficult situation.

 

To put it in a nutshell, Dr Smee’s actions in the crucial months leading up to 10 August 1995 were heavy handed and confrontational, and involve what was, indeed, an abdication of his management responsibility to resolve a difficult and potentially damaging situation of personal disharmony within the department.

 

He was focussed on the perceived need to establish his authority, following his appointment on 5 April 1995, to the exclusion of a sensible and fair management practice.  As a result, the applicant, (a person whom he regarded as an impediment in the way of the establishment of his authority), was treated in an unfair and heavy-handed way.

 

WAS THE APPLICANT GIVEN THE OPPORTUNITY TO RESPOND TO ALLEGATIONS IN RESPECT TO WHICH HER EMPLOYMENT WAS TERMINATED?

 

Exhibit 11, the letter from the Area Health Service to the applicant’s solicitors dated 29 August 1995, was a lengthy and comprehensive document.  Although some parts of it could have been worded more clearly, I am satisfied, in respect of the allegations set out in that letter, that the applicant had an opportunity to respond within the meaning of section 170DC of the Act.

 

However, it is necessary to examine the actual reasons in respect of which the applicant’s employment was terminated, in order to see if, in respect of those reasons, the applicant was given the opportunity to respond required by section 170DC of the Act.

 

Mr John Kilkeary was the Area Health Service executive who had charge of the matter at the time the applicant was suspended with pay on 11 August 1995, and at the time her employment was terminated on 20 October 1995.  Up until August he was the Director of Corporate Services, Eastern Sydney Area Health Service.  His duties included responsibility for industrial matters throughout the Area.

 

After that date, following the amalgamation of the Eastern Sydney Area Health Service with the Southern Sydney Area Health Service (to form the South Eastern Sydney Area Health Service - the respondent in this case) he was employed as Executive Officer - Task Force with South Eastern Sydney Area Health Service.

 

Although Mr Kilkeary had charge of the matter, the person who actually made the decision to terminate the applicant’s employment was Dr John Campbell, the Acting Chief Executive Officer of the South Eastern Sydney Area Health Service.

 

Dr Campbell made that decision following the receipt by him of an internal memorandum from Mr Kilkeary dated 19 October 1995.  That memorandum is attached to Mr Kilkeary’s statement (Exhibit 118) at tab “D”.  There were six attachments to that memorandum, including an earlier memorandum dated 6 October 1995 from Mr Kilkeary to Dr Campbell (tab “C” of Exhibit 118), and Ms Kardell’s response (via her solicitor Mr Szekely) to the letter of 29 August 1995 (Exhibit 11), which response became exhibit 16.

 

Mr Kilkeary’s memo of 6 October 1995 in turn referred to another memorandum he had sent to Dr Campbell, which was dated 11 August 1995.  That memorandum is to be found at tab “B” in exhibit 118.

 

It is clear, although Dr Campbell did not give evidence, that he made no personal investigations into this matter, but relied upon the advice given to him by Mr Kilkeary.  It follows that Dr Campbell relied upon the memos of 11 August 1995 and 6 October 1995 as supplying the reasons for the termination of employment which Mr Kilkeary had recommended to him in both the memo dated 6 October 1995 and the memo dated the 19 October 1995.  Furthermore, Dr Campbell must have, in my opinion, accepted the factual assertions in all three of Mr Kilkeary’s memos.

 

In his memo dated 11 August 1995, Mr Kilkeary briefly informed Dr Campbell that the Department of Radiation Oncology “has a long history of poor staff relations.  This dates back to 1986.”

 

He then briefly referred to the report he had prepared in response to the applicant’s and Dr Mameghan’s complaints concerning the recommendation of the MAAC in December 1994 to appoint Dr Smee to a position which had not been advertised.

 

On page two of his memorandum dated 11 August 1995, Mr Kilkeary, in referring to that report, said:

 

“The recommendations of the report were accepted and implemented.  On the second occasion, Dr R. Smee was the only applicant.  He was interviewed and unanimous recommendation made that he be appointed to the position.

 

Ms Kardell would not accept this decision and there followed a series of actions designed to destabilise the Department.  These included the issue of an unidentified “Public Notice” to targeted individuals and to noticeboards etc; the drafting of a letter to the Chief Executive Officer disputing his acceptance of the recommendations contained in the report and approaching individuals during working time to be a signatory to the letter.

 

Of significance is that Ms Kardell stated that she was a member of “a Group” within Radiation Oncology.  Members of this Group could not be readily identified, but it was clear to Management that this Group’s intentions were to pursue their own agenda.  These activities included distributing documents and actively encouraging others to sign copies of draft letters.  Some of these activities were undertaken inside working hours.  These actions were considered by Management to be abhorrent to her role as part of the Management Team within Radiation Oncology.”

 

The assertion, in the second quoted paragraph above from the memorandum to Dr campbell of 11 August 1995, that the issue of the “public notice” and the drafting of a letter to the Chief Executive Officer were actions which “followed” the appointment of Dr Smee (which was clearly the appointment on 5 April 1995) is simply wrong.

 

Mr Kilkeary never discussed that aspect of the matter with Dr Campbell (see transcript page 1222), and, in my opinion, Dr Campbell would have accepted what Mr Kilkeary had said.

 

From the point of view of the management of the hospital and the Area Health Service, it was important that someone be appointed to the position of Director of the Department of Radiation Oncology, in order to end the divisive and destabilising strife in the department.  Dr Campbell had been informed by Mr Kilkeary of the fact that, for many years, the department had suffered from poor staff relations.

 

In that historical and factual context, an allegation that the applicant had continued to actively “destabilise the Department” was very serious indeed - particularly as the position she held was a management one.

 

The seriousness of this inaccurate allegation was reinforced by the statement in the third quoted paragraph above: “These actions were considered by Management to be abhorrent to her role as part of the Management Team within Radiation Oncology.” 

 

At no time, including, but not limited to, the letter dated 29 August 1995 (Exhibit 11) was it ever put to the applicant, that, after the appointment of Dr Smee, she was involved in any such activities.  This was for the reason that there was no factual basis for such an allegation.  When Mr Kilkeary stated those matters, as simple facts, to Dr Campbell, he made a serious (and clearly unintentional) mistake.

 

In my opinion, Dr Campbell must have regarded the allegation that the applicant had continued to destabilise the department, despite the permanent appointment of Dr Smee, as a very serious one indeed.  It was an allegation that, because it was said to Dr Campbell as a result of a mistake by Mr Kilkeary, was never put to the applicant.

 

It follows that, in making the decision to terminate the applicant’s employment, Dr Campbell (through no fault of his own) relied upon a reason in respect of which the applicant was never given the opportunity to respond.

 

It follows from that that the termination of the applicant’s employment was not in accordance with the requirements of section 170DC of the Act, and unlawful for that reason alone. 

 

I should add here, for the sake of completeness, that, in my opinion, the applicant did accept the decision to appoint Dr Smee to the position of Director, despite having agitated unsuccessfully against it being made.  In my opinion, she acted accordingly.  In my opinion, after 5 April 1995, the applicant did nothing which could be construed as an action “designed to destabilise the Department”.

 

REMEDY

 

Reinstatement

 

Section 170EE(1) of the Act reads as follows:

 

In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may, if the Court considers it appropriate in all circumstances of the case, make the following orders:

 

(a)     an order requiring the employer to reinstate the employee by:

         

(i)    reappointing the employee to the position in which the employee was

       employed immediately before the termination; or

 

(ii)   appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and

 

(b)     if the Court makes an order under paragraph (a):

 

(i)    any order that it thinks necessary to maintain the continuity of the employee’s employment; and

 

(ii)   an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.

 

 

Is the reinstatement of the applicant appropriate in all the circumstances of the case?

 

In Patterson v Newcrest Mining Ltd, Industrial Relations Court of Australia, Full Court, 6 June 1996, unreported, his Honour, Wilcox CJ said:

 

“.....the word ‘impracticable’ has caused difficulty in relation to unlawful termination claims.  It appears in subs.(2) and has led Judges of the Court, including myself, to describe the scheme of s.170EE as one providing a primary remedy of reinstatement and secondary remedy of compensation where reinstatement is impracticable.  These comments must be read in the light of the amendments, where they apply, requiring the Court to reach a determination that is ‘appropriate in all the circumstances of the case’ to order reinstatement.  Contrary to the submission put by counsel for appellant, it is my opinion that the matter of appropriateness, where that concept applies, is not restricted to the form of a reinstatement but applies to the initial question whether reinstatement shall be ordered or not.”

 

In my opinion, reinstatement (putting aside for the moment the question of impracticability) would be an appropriate remedy in this case. 

 

The position from which the applicant was dismissed was a position in which she had worked for many years.  Her job is vital to her.  I take that into account on the question of whether reinstatement is an appropriate remedy.

 

The applicant is clearly capable of performing the duties associated with the job.

 

Furthermore, despite the fact that, to a certain extent, the respondent has established that some criticism can properly be made of the applicant, the respondent has failed to prove that there was a valid reason for the termination of her employment.

 

In particular, the large range of allegations made against the applicant concerning so-called harassment and intimidation of her subordinates were, in my opinion, fabrications by those persons who alleged they had been her victims.

 

Furthermore, (contrary to the respondent’s case), the applicant did not, after Dr smee’s appointment on 5 April 1995, undermine his authority.  On the contrary, it was Dr Smee who weakened the applicant’s standing in the deparment.

 

The applicant has, as far as the Court is aware, remained unemployed.  Her job was a specialised one, involving particular skills.  She would really only be able to work as a radiographer, unless she were to completely change her career.

 

In my opinion, the termination of the applicant’s employment was clearly an injustice.  That injustice ought to be made right.

 

In my opinion, the only remedy which would give the applicant justice in the circumstances of this case is an order for reinstatement.

 

I consider, therefore, that in all the circumstances of the case, reinstatement is an appropriate remedy. 

 

Is it impracticable to order the reinstatement of applicant?

 

Having determined that reinstatement is an appropriate remedy, I then move to the question of the impracticability of the remedy.  In Nicolson v Heaven and Earth Gallery Pty Ltd [1994] 1 IRCR 199, Wilcox CJ said at page 210:

 

“One of the amendments to Pt VIA made in June 1994 was the substitution of a new s.170EE.  Under the substituted section, the first task of the Court, in considering relief, is to consider whether reinstatement is practicable.  Compensation for loss of the job (as distinct from lost remuneration) may be awarded only if reinstatement is “impracticable”.  It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible.  The word “impracticable” requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way.  If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer’s business, it may be “impracticable” to order reinstatement, notwithstanding that the job remains available.”

 

His Honour’s approach to the question of the impracticability of reinstatement has been adopted by a number of Judges of the Court.  See the decision of von Doussa J in Cox v Australian Meat Corporation Pty Ltd, Industrial Relations Court of Australia, 14 June 1995, unreported.  See also Johns v Gunns Ltd, (1995) 60 IR 258; Patterson v Newcrest Mining Ltd, Industrial Relations Court of Australia, Marshall J, 21 December 1995, unreported; and Perkins v Grace Worldwide (Aust) Pty Ltd, Industrial Relations Court of Australia, Full Court, 7 February 1997, unreported.

 

In Anthony Smith and Associates Pty Ltd v Sinclair (1996) 67 IR 240, the Full Court of this Court considered the question of any disadvantage that might suffered by an employer as a result of an order for reinstatement.

 

The Court was speaking about an order under

section 170EE(1)(a)(ii) of the Act (an order for reinstatement to a position other than the position from which the employee was dismissed), but the Court’s reasoning is equally applicable to an order for reinstatement to the position in which the applicant was employed before the termination of employment.  The Court said, at page 244:

 

“We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer.  Where there is evidence that this will be so, that evidence may be relevant on the issues of practicability and appropriateness.  But it would be contrary to principal to treat such evidence as necessarily determinative.  The occasion for the order arises because the employer has acted unlawfully in terminating the employee’s employment.  A reinstatement order is akin to an injunction compelling a wrong-doer to restore the position of the innocent party.  In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrong-doer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made.”

 

The principals I extract from the cases and the legislation are as follows:

 

1.    The Court has a discretion as to the remedies it may grant.

 

2.    That discretion is not absolute, and all the circumstances of the case must be taken into account.

 

3.    In exercising that discretion, the Court has to first determine the question of whether, in all the circumstances of the case, an order for reinstatement is an appropriate order.

 

4.    The Court then has to consider whether, in all the circumstances of the case, the reinstatement of the employee would be impracticable.

 

5.    Reinstatement is the primary remedy under the Act.  This follows from the necessity to consider the question of the impracticability of reinstatement before considering the question of whether compensation is appropriate.

 

6.    Therefore, reinstatement should be ordered if the Court considers it an appropriate order, unless the Court finds it to be impracticable so to do.

 

7.    “Impracticable” means something less than impossible, but reinstatement will not be impracticable if it is merely inconvenient, difficult, or disruptive, without causing an unacceptable problem, or unacceptable embarrassment, or seriously effecting productivity, or seriously effecting harmony within the employer’s business.

 

8.    Any adverse consequences to the employer are relevant, but it must be remembered that an employee whose employment has been unlawfully terminated has suffered an injustice and that should be made right, if it can.

 

The threatened resignations of Ms Schneider and Ms Harfield

 

The Court does not accept the evidence of Ms Schneider and Ms Harfield in relation to their reasons for threatening to resign on 10 August 1995.

 

With the limited exception of the applicant’s failure to pay sufficient heed to what Ms Schneider and Ms Harfield were saying about Ms Marsman’s competence and qualifications, the Court does not accept that the deterioration in the relationship between the applicant, on the one hand, and Ms Schneider and Ms Harfield, on the other, should be laid at the feet of the applicant.  In particular, the Court does not accept the evidence of Ms Harfield and Ms Schneider in respect of the allegations made by them concerning the applicant’s supposed harassment and intimidation, and the creation of a hostile working environment.

 

Yet the respondent seeks, in significant part, to rely upon the disharmony that would be caused in the workplace between the applicant, on the one hand, and Ms Schneider and Ms Harfield, on the other, if the applicant were to return to work as a result of a reinstatement order.

 

The injustice which would be involved in declining to order reinstatement on the basis that Ms Schneider and Ms Harfield would resign is manifest.  The applicant would be denied her livelihood, and her career would be destroyed, in significant part as a result of false allegations made by these two persons concerning her.

 

In my view, that would be to deny the evident purpose of the legislation, and to undermine the basic position that reinstatement is the primary remedy under the Act.

 

It is still necessary to consider the effect that their resignations might have on the department.  If Ms Schneider and Ms Harfield in fact resign as they have threatened to do, it would adversely effect the staffing levels within the department.

 

However, staff levels have been low in the past and patient care has been maintained.  The hospital has the ability to recruit substitute radiographers - albeit it may be difficult to find persons of the experience and competence of Ms Schneider and Ms Harfield.  The hospital will, nonetheless, be able to replace them within a reasonable time.  In my opinion, the respondent overstates the effect that the resignations of Ms Schneider and Ms Harfield would have.

 

The threatened resignation of Dr Smee

 

Dr Smee gave evidence that he would resign if the applicant were reinstated.

 

I accept that there have been many years of disharmony, on a personal level, between Dr Smee and the applicant.  This disharmony goes back at least as far as 1991.  However, despite the existence of personal disharmony between them, until 1995 they were able to continue working together in a professional way.

 

The relationship between them deteriorated badly from the end of 1994, following the decision of the MAAC to recommend the appointment of Dr Smee to the position of the Director of the Department of Radiation Oncology, and not to a conjoint position.  The applicant, and Dr Mameghan, complained about that decision, and succeeded in having it overturned by the Area Health Service.

 

The Court also accepts that, up until the appointment of Dr Smee on 5 April 1995, the applicant made it clear, both publicly and privately, that she did not think that Dr Smee should be appointed.

 

In my opinion, this was partly related to genuine concerns about what she perceived to be the “downgrading” of the department involved in having a director who did not also hold a conjoint appointment as a professor or associate professor with the University of New South Wales.  It was also partly concerned with what she perceived to be Dr Smee’s autocratic management style.  Nonetheless, her opposition to the appointment of Dr Smee was, in my opinion, also partly motivated by the mutual personal difficulties between them, that had existed for years.

 

That said, in my opinion, the applicant’s opposition both to the employment of Dr Smee, himself, and the appointment of anyone to a non-conjoint position, at no time overstepped the bounds of proper behaviour.

 

If the applicant had campaigned against Dr Smee after his appointment on 5 April 1995, then that would have been a completely different matter.  But she did not do that.

 

In all the time he was the Acting Director of the department, Dr Smee took no steps to improve the personal and working relationship between himself and the applicant.  If he was concerned about the good of the department, as the senior manager in the department he should have done something.  The primary responsibility for that lay with him, not the applicant.

 

Furthermore, after his appointment on 5 April 1995, not only did Dr Smee take no steps to improve the relationship between himself and the applicant, what he did was calculated, and likely to, create further serious difficulties between them.

 

In particular, his memos of 6 July 1995 (Exhibits 58, 60, and 63) were confrontationist, and calculated to publicly weaken the position of the applicant within the department.  Dr Smee’s conduct at the combined staff meeting on 10 July 1995 had the same effect.

 

Contrary to the respondent’s submissions, and contrary to the assertions in the letter of 29 August 1995 (Exhibit 11), the applicant’s memo to Dr Smee dated 18 July 1995 (the annexure to Exhibit 11, and, itself, Exhibit 64) was a moderate and proper reply to Dr Smee.

 

In short, although there had been a long history of personal difficulties between the applicant and Dr Smee, it was Dr Smee’s confrontationist actions concerning the applicant, after his appointment in April 1995, which caused a severe deterioration in the relationship between them.

 

Dr Smee set out to assert his authority as the Director of the department.  He became the Director of a department that had been riven with dissension for many years.  He knew that he had,  at least partly, been the focus of that dissension.

 

Yet, and contrary to the sound advice of Dr Bearham (the Director of Clinical Services) Dr Smee made no attempt to resolve the difficulties within the department by seeking to speak to the persons involved (including the applicant) and working out some solution.

 

Dr Smee did not attempt to build his authority within this strife-riven department by building the trust and confidence of his subordinates.  On the contrary, at least in respect of the applicant, he merely asserted his authority, regarding the applicant as a person who was in his way.  It was this attitude of his which explains his confrontationist, and clearly unfair, treatment of the applicant.

 

In this context, it would be unjust to allow Dr Smee’s threatened resignation to have any effect upon the Court’s decision concerning the impracticability of a reinstatement order.

 

However, that is not the end of the matter.  Before departing from Dr Smee’s threatened resignation, it is important to note that he is an important person in respect of patient treatment.  He is a very experienced specialist, and his lack of management skills is not reflected in his skills as a doctor.  I have no doubt that he is very talented and works very hard.  He is justifiably held in high esteem by his professional colleagues.

 

He is a professional.  Despite his poor treatment of the applicant, and his direct evidence asserting that he would resign immediately, and that his “life values” would come ahead of patient care (See transcript pages 2732 and 2733) a reasonable person in his position would not act in that way.  If he were to resign and walk out the door immediately, thereby having a direct and significantly adverse effect on patient care, that would be a shameful thing for him to do.

 

I accept, nonetheless, that there is a real possibility that, for one reason or another, he will resign.  It is necessary to consider (as I do) the practical effect this will have.  In my opinion, within a reasonable time, the hospital and Area Health Service will overcome the problems presented to them by Dr Smee’s resignation.  His resignation would not, in my view, cause such a level of disruption as to render the reinstatement of the applicant impracticable.

 

The threatened resignation of Dr Lonergan

 

Dr Denise Lonergan also said she would resign if the applicant were reinstated.  She is part-time specialist and the effect of her resignation would not, therefore, be as significant as if she were a full-time employee.  Furthermore, she is also a professional.  In my opinion, a reasonable person in her position would not resign in such a way as to adversely effect the standards of patient care within the department.

 

She would more easily be replaced than Dr Smee, and in my opinion, the effect of her resignation would short lived.

 

Dr Lonergan will realise, having read these reasons for judgement (which I presume she will) that the principal allegations made against the applicant were simply fabrications.  She will realise that this conclusion has been reached, not on an assessment of persons as they were in the witness box and not only taking into account their demeanour - but principally on an objective analysis of the evidence.  In my view, she will be driven (as I was) to the conclusion that Ms Schneider and Ms Harfield have fabricated the bulk of the allegations against the applicant.

 

In my opinion Dr Lonergan will also accept that, particularly in the last few months prior to the applicant’s suspension from duties on 11 August 1995, it was Dr Smee’s confrontationist management style, and the way he set about asserting his authority, which led to the breakdown in the relationship between himself and Ms Kardell.

 

In those circumstances, in my opinion, a fair minded person in the position of Dr Lonergan will reconsider - and she will not resign.  This opinion is reinforced by the fact that there is no evidence of any breakdown, on a personal level, in the relationship between Dr Lonergan and the applicant.

 

The threatened resignation of Mrs Sandra Rayner

 

Ms Sandra Rayner gave evidence that she would resign, with notice, because she would not feel comfortable working with the applicant.  (See transcript page 1564).  She attributed these feelings to a letter (Exhibit 52) which she had received from the applicant’s solicitors.

 

That letter was dated 5 October 1995 and was one of a number similar letters sent by the applicant’s solicitors (with her knowledge and permission) on that date.  Other similar letters were sent to Ms Schneider (Exhibit 51) and Ms Harfield (Exhibit 50).

 

All of those letters were pompous, intemperate, and confrontational.  They should not have been sent.

 

For example, the letter to Ms Rayner referred to the letter dated 29 August 1995 (Exhibit 11) from the Area Health Service the letter which set out the allegations against the applicant.  It went on to refer to the allegations attributed in that letter (Exhibit 11) to Ms Rayner saying:

 

“...from information in my possession, it is apparent that these allegations are not only false or inaccurate in certain material respects but call into question your motives.

 

The assertions made in the letter of 29 August 1995 which directly derive, inter alia, from the information that you have given the Area, are misleading and untrue and the imputations derived from them are grossly misleading and defamatory in the following respects:

 

1. That you were asked to ‘report’ on the activities of Ms Harfield by my client and as a result were ‘....so concerned and upset ....that (you) had to seek medical treatment.’

 

2. That you received medical attention and that the medical certificate that you received and which enabled you to certified unfit for work between 7 and 14 August 1995, which stated that you had ‘...severe stress and anxiety with specific phobia about returning to work’ was related to my client.”

 

The letter went on to make certain demands, followed by threats, as follows:

 

“unless I receive from you:

 

(a) an undertaking that you will cease making all or any of the above assertion hence forth;

 

(b) an undertaking that you will apologise forthwith to my client in writing by Friday, 13 October 1995 for the harm and injury to my client’s reputation and good name that may have been occasioned your misrepresentations, unequivocally; and

 

(c) provide evidence that you have instructed the Area that you have provided such apology to my client and that you withdrawn the representation and allegations forthwith,

 

my client will have no alternative but to consider commencing proceedings against you in the Supreme Court for defamation seeking damages and costs (which will not be insubstantial) without further notice to you.”

 

When Ms Rayner received this letter she understandably felt threatened and upset. 

 

In fact, the letter to Ms Rayner, although it was not inaccurate, did not fully state what Exhibit 11 said were the allegations that had been made by Ms Rayner to the Area Health Service.  The full text of the allegations in Exhibit 11, which were claimed to have been made by Ms Rayner was as follows:

 

“In an unsolicited statement a senior radiation therapist, Ms Sandra Rayner, claims Ms Kardell has often asked her to ‘report’ on the activities of Ms Harfield.  Ms Rayner states that on 4 August 1995 Ms Kardell asked her via a telephone conversation to ‘keep tabs on Ms Harfield and report all she says and does’.  Ms Rayner found these instructions ‘completely out of line’.  Further, she considered such requests as ‘inappropriate, counterproductive and destructive’.  Ms Rayner believed that Ms Kardell wanted her to ‘spy’ on Ms Harfield, which she felt was ‘detrimental to good working relationships’.  Ms Rayner was so concerned and upset by Ms Kardell’s instructions that she had to seek medical attention.  Ms Rayner was given a medical certificate that states she has ‘severe stress and anxiety with specific phobia about returning to work’.  Accordingly, she was certified unfit for duty from the 7 to 14 August 1995.”

 

It can readily be seen that the allegations in Exhibit 11 went considereably beyond what was set out in the letter of 5 October 1995 to Ms Rayner.

 

As it turned out, Ms Rayner’s evidence fell far short of the allegations in Exhibit 11 (See above).  In fact, Ms Rayner gave evidence that she could not remember having ever made the allegations that were attributed to her in Exhibit 11.

 

Ms Rayner struck me as a very emotional person, one who was easily upset.  Indeed, she broke down in the witness box, and was clearly very nervous about giving her evidence.  The cross-examination to which she was subjected was not particularly forceful, and the manner of the cross-examination was not intimidatory.  The impression about her personality that I gained, from the way she gave her evidence, is supported by the evidence concerning the reasons for the need for her to take time off work.

 

Ms Rayner now knows that the allegations in Exhibit 11, to which the applicant’s solicitor was referring in that threatening letter dated 5 October 1995 were, on her own evidence, not accurate.  She should understand that the applicant, being, in effect, a victim of those untrue allegations, allowed the letter dated 5 October 1995 to be written to her.

 

Ms Rayner has worked with the applicant since 1979, in a relationship which was cordial and professional (See transcript page 1570).

 

I assume Ms Rayner will read at least those parts of these Reasons for Judgment which relate to her.  I assume that, having read them, she will understand the circumstances under which that intemperate letter of 5 October 1995 was sent to her.  I assume that she will realise that the applicant was really defending herself against what are now known to be untrue allegations attributed by the Area Health Service to Ms Rayner.

 

In those circumstances, Ms Rayner, if she behaves reasonably, will not resign.

 

The threatened resignation of Ann Goonan

 

The only incident involving Ms Goonan was the discussion between herself and Ms Kardell in April 1995 when Dr Smee nominated Ms Goonan as an alternative representative of the senior radiation therapists to the combined staff meeting (the meeting of senior staff in the department).  I have dealt with that matter above.

 

Ms Goonan gave evidence that, apart from that conversation, her dealings with the applicant had been both “calm and collected and.....professional”.

 

The reason stated by Ms Goonan for resigning if Ms Kardell were to be reinstated is that the work environment would be too stressful if Ms Kardell returned.  (See pages 1473 to 1475).

 

There would be some stress in the working environment if the applicant were to return.  But Ms Goonan should understand, in common with other persons in the department, that the principal reasons for the deterioration in the working relationships in the department in 1995 are not to be placed at the feet of the applicant.  Rather, the deterioration in the working relationships can squarely be attributed to the actions of Ms Harfield, Ms Schneider, and Dr Smee.

 

In those circumstances, a reasonable person in the position of Ms Goonan would wait and see how things go, and not resign immediately.

 

In any event, if Ms Goonan were to resign, as would be the case with Ms Schneider and Ms Harfield, the hospital would be able, in my opinion, to find a replacement for her, within a reasonable time.

 

The applicant’s relationship with senior hospital and health service management - Dr Bearham, Mr Johnston and Mr Kilkeary

 

In re-examination, Dr Bearham was asked this question:

 

“Q.    What do you say to the appropriateness of a position being created for Ms Kardell outside the Radiation Oncology Department, that is supernumerary to the hospital’s needs?

 

A.      It’s completely impractical and I can’t conceive of such an appointment being made.

 

Q.      Why not?

 

A.      Because the relationship with Ms Kardell and members of the hospital senior management staff has completely broken down, such that there’s not - it’s inconceivable that any of those parties would work with each other.

 

Q.      Who?

 

A.      Mr Johnston, myself, Mr Kilkeary - and Mr Kilkeary no longer works for the organisation, but basically I’ve been accused of setting up an appointment for some favoured person, and I just don’t see how I could be asked or expected to work with such a person again.”

 

That evidence was given on 12 November 1996.  On 11 November 1996, when Dr Bearham was being cross-examined, but at a time when he was asked to leave the courtroom to consider an objection, counsel for applicant abandoned the allegation that there had, in fact, been an agreement (a conspiracy) between Dr Smee, Mr Johnston and Dr Bearham to assure the appointment of Dr Smee to the position of Director.  That represented a major change in the applicant’s case. 

 

I proposed, in the absence of the witness, to inform Dr Bearham of the withdrawal of that particular allegation.  However, Ms Anderson, counsel for the respondent, objected to that procedure and I did not inform Dr Bearham of the change in the applicant’s case.  In hindsight, it would have been better if I had.

 

As a consequence of that, when Dr Bearham gave his evidence about the breakdown of the relationship between Ms Kardell and senior management, he was unaware of the fact that that particular allegation had been withdrawn.

 

In my opinion, his evidence was significantly coloured by his continuing belief that the applicant still maintained the allegation that he had been party to what was, in effect, a conspiracy to appoint Dr Smee.

 

That allegation was not pressed, and not sustained in evidence.  One can well understand that Dr Bearham would feel resentment to a person who made the allegation.

 

But the allegation has been withdrawn.  Presumably, Dr Bearham is now aware of that. 

 

Furthermore, it is now clear that the source of the allegation was not really the applicant.  Rather, it was Dr Mameghan.  In effect, the applicant was merely repeating what Dr Mameghan had said to her, with the gloss that Dr Mameghan had put on the conversation he had overheard.

 

The respondent submits that, despite the allegation of the corrupt agreement having been withdrawn, that that was no more than a tactic of convenience, and that “even now the applicant seeks to leave the smell of corruption in the air”.  The respondent refers to page 2473 of the transcript in support of that submission.

 

That is not correct.  In fact, at that part of the transcript, (the allegation of a corrupt agreement having been withdrawn, but Dr Bearham still not being aware of that withdrawal), it was suggested to Dr Bearham that the words supposedly heard by Dr Mameghan were reasonably capable of being understood as the making of such an agreement.

 

In my view, that was merely the expression of a “fall-back position” by council for the applicant.  In fact, in my opinion, the applicant having been informed by Dr Mameghan of what he had overheard, together with the gloss that Dr Mameghan had put on it, it was not at all unreasonable for the applicant to conclude that Dr Mameghan’s “gloss” was the fact of the matter.

 

She was wrong, and towards the end of the case, having heard the evidence of all the parties involved (Mr Johnston, Dr Smee and, finally, Dr Bearham) the applicant accepted that Dr Mameghan’s “gloss” was wrong.  In those circumstance, she did the right thing, and instructed her counsel to withdraw the allegation.  The potential for that change of tack to rebound on her, to her discredit, was clear.  As it turns out, I have not taken it that way.

 

In my opinion, it is also significant that Dr Bearham will realise that, having read these reasons for judgement, many of the allegations made against the applicant were simply false.  Furthermore, Dr Bearham will realise that breakdown in the personal relationships within the department, particularly in the last few months prior to the applicant’s suspension with pay on 11 August 1995, was principally caused by the confrontational attitude of Dr Smee, and his desire to assert his authority as Director, and the feelings of hostility towards the applicant held by Ms Schneider and Ms Harfield.

 

When viewed objectively, the fact that the applicant made the allegation against Dr Bearham although no doubt still a matter of genuine concern to him, loses much of its sting.  A fair minded person (and Dr Bearham strikes me as a fair minded person) in Dr Bearham’s position would put this episode behind him, and seek to establish a proper working relationship once again.  The same applies, in my opinion, to Mr Johnston - a person who, in my opinion, is able to take an objective and fair position.

 

In any event, the applicant will be working, if reinstated, in the Department of Radiation Oncology.  There will only be infrequent contact between herself and the senior levels of hospital and Area Health Service management.

 

In all of the circumstances, in my opinion, the applicant’s relationship with Dr Bearham and Mr Johnston will not be such as to cause a serious problem with harmony in the workplace, or productivity.  In other words, it would not render her reinstatement impracticable.

 

The order that the Court will make, taking into account all of the above matters, is that the respondent, within seven days of the date of this judgement, reinstate the applicant by reappointing her to the position in which she was employed immediately before the termination of her employment.

 

Orders for continuity of employment and remuneration lost

 

The Court will also order that the employment of the applicant is, for all purposes, deemed to have been continuous in the position in which she was employed before the termination of her employment, up to the time of her reinstatement.  The Court will also order that the respondent take all such steps which may be necessary to maintain the continuity of the applicant’s employment for all purposes.

 

As to remuneration lost, the applicant is entitled to have her entire economic loss up to the date of these orders made good.  This would involve a calculation of what, as a practical matter, the applicant would have earned if she had remained in her former position.  Such factors as likely overtime and penalty rates (if they had been earned by the applicant in the past) would have to be taken into account.  Her former working patterns would have to be used as the basis of the assessment of what she would have earned in the period between the termination of her employment and the making of these orders.

 

Furthermore, the applicant was employed under an award.  Presumably, since the termination of her employment on 20 October 1995, the rate of pay which the applicant would have earned if she had remained in employment has changed.  The applicant is entitled to be reimbursed, not for what she would have earned if she had remained in employment at the rate of pay she was earning at the time of the termination of her employment, but for the remuneration that she has actually lost as a result of the termination of her employment.

 

The applicant is entitled to be compensated for her lost remuneration - not merely her lost wages.  Her lost remuneration would include any superannuation which would have been paid to her over and above such payments made by the respondent in accordance with any statutory or award obligation.  (Any such statutory or award payments would have to be made by the respondent in order to comply with the order for continuity - even if they did not form part of the applicant’s remuneration package).

 

Any annual leave that the applicant would have accrued during the period between the termination of her employment and the making of these orders, together with accrued leave loading, would have to be paid to her - or alternatively, she would have to be given credit for such accrued annual leave loading entitlements.

 

The applicant received five weeks pay in lieu of notice.  That payment would have to be deducted from any payment to the applicant by the respondent for remuneration lost.

 

The Court is not, as the evidence now stands, in a position to calculate the amount of remuneration lost by the applicant.

 

The practical solution would involve the applicant and the respondent reaching amicable agreement in respect of an order for remuneration lost, and filing consent orders.  A timetable will be set for this process.

 

Interest

 

The applicant has applied for interest.

 

In so far as it is relevant, section 482 of the Act is as follows:

 

“(1)   In proceedings for the recovery of money (including a debt or damages) in respect of a cause of action that arose after 21 November 1984, the Court or a Judge must, on application, unless good cause is shown to the contrary, either:

 

(a)     order that there be included in a sum for which judgment is given interest at such rate as the Court or Judge thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or

 

(b)     without proceeding to calculate interest in accordance with paragraph (a), order that here be included in the sum for which judgment is given a lump sum instead of any such interest.

 

(2)     Subsection (1) does not:

 

(a)     authorise the giving of interest on interest or of a sum instead of such interest; or

 

(b)     apply in relation to a debt on which interest is payable as of right whether because of an agreement or otherwise; or

 

(c)     affect the damages recoverable for the dishonour of a bill of exchange; or

 

(d)     limit the operation of any enactment or rule of law that, apart from this section, provides for the award of interest; or

 

(e)     authorise the giving of interest, or a sum instead of interest, except by consent, on a sum for which judgment is given by consent.

 

(3)     If the sum for which judgment is given (‘the relevant sum’) includes, or the court or a Judge in its or his or her absolute discretion determines that the relevant sum includes, an amount for:

 

(a)     compensation in respect of liabilities incurred that do not carry interest as against the person claiming interest or claiming a sum instead of interest; or

 

(b)     compensation for loss or damage to be incurred or suffered after the date on which judgment is given; or

 

(c)     exemplary or punitive damages;

 

interest, or a sum instead of interest, must not be given under subsection (1) in respect of such an amount or in respect of so much of the relevant sum as in the opinion of the court or Judge represents such an amount.”

 

Section 482(4) is, for present purposes, not relevant.

 

The question arises whether an application alleging the unlawful termination of employment and seeking a remedy under section 170EE of the Act is a proceeding “for the recovery of money (including a debt or damages)”.  In my opinion, in so far as an application alleging an unlawful termination of employment seeks an order for remuneration lost under section 170EE(1)(b)(ii), such an application is a “proceeding for the recovery of money (including a debt or damages)” within the meaning of section 482(1) of the Act.

 

It is to be noted that the words “including a debt or damages” are not expressed to be exclusive, and that there may be other types of proceedings under section 482(1) of the Act “for the recovery of money” apart from proceedings in relation to “a debt or damages”.

 

In my opinion, an application alleging unlawful termination of employment, and seeking an order for reinstatement and a consequential order for remuneration lost, is just such a proceeding.

 

Section 482(1) of the Act provides that the Court must on application, unless good cause is shown to the contrary, make an order for interest.

 

Although the Rules of the Industrial Relations Court of Australia did not prescribe a rate of interest, order 35 rule 8 of the Federal Court Rules prescribe 12% as the rate of interest for orders made under the section of the Federal Court Act which is analogous

to section 482 of the Workplace Relations Act.

 

In my opinion, 12 per cent (12%) would be an appropriate rate of interest to be used in this case.

 

Although the applicant is entitled to interest, it is not possible to calculate that interest until such time as an order is made (by consent or otherwise) in respect of the amount of remuneration lost.  The parties will be expected to be in a position to provide assistance to the Court on the amount of interest to be ordered when this matter is relisted - as it will be, for final orders, sometime before the end of September.

 

ORDERS

THE COURT ORDERS AND DECLARES THAT:

 

1.    The applicant be allowed to file her application by 2 December 1995.

2.    Within seven days of today the respondent shall reinstate the applicant by reappointing her to the position in which she was employed immediately before the termination of employment.

3.    The employment of the applicant is, for all purposes, deemed to have been continuous in the position in which she was employed immediately before the termination of her employment, up to the time of her reinstatement.

4.    The respondent is to take such steps as may be necessary to maintain the continuity of the applicant’s employment for all purposes.

5.    The respondent is to pay the applicant the amount of remuneration lost by the applicant as a result of the termination of her employment, in accordance with the principles set out in the reasons for judgement herein.

6.    If an agreement is reached between the parties within fourteen days of the date of this judgement on the question of the gross amount of remuneration lost, consent orders may be filed pursuant to Order 35 Rule 10.

7.    Within seven days of today, the applicant is to provide the respondent with copies of all documentation in her possession or control concerning any remuneration earned by her since the termination of her employment, together with the names, addresses and telephone numbers of all persons who have provided that remuneration.

8.    Any monies paid by the respondent to the Commissioner of Taxation as taxation in respect of the monies ordered to be paid to the applicant for remuneration lost shall be deemed to have been paid in pro tanto satisfaction of the judgement debt.

9.    Liberty to apply on seven (7) days notice.

 

 

 

I certify that this and the preceding 118 pages are a true copy of the reasons for decision of Judicial Registrar Patch.

 

 

 

 

 

Associate:         J. Flores

 

Dated:              8 September 1997




APPEARANCES

Counsel for the applicant:	R. Goot
Solicitors for the applicant:	Szekely and Associates
Counsel for the respondent:	T. Anderson
Solicitors for the respondent:	Bartier Perry and Purcell
Dates of hearing:	1 December 1995 11 & 12 January 1996 19, 20, 21 22 & 23 February 1996 29 and 30 April 1996 1, 2, 3, 15, 16, 17, 22, 23 and 24 May 1996 12, 13, 14, 15 and 16 August 1996 5 September 1996 8, 9, 10, 11, 21, 22, 23, 24 and 25 October 1996 11, 12, 13 and 14 November 1996 9, 10 and 11 December 1996