Doctor loses victimisation appeal against local health district

29 January 2019 | Vinay Pandaram, Senior Claims Manager, NSW, Avant

A case involving a psychiatrist who raised concerns about a hospital’s workplace health and safety, emphasises the importance for doctors who find themselves in a similar situation, to tread carefully and tips on how to proceed.

In the reported case, shortly after commencing employment at a hospital, the psychiatrist was the subject of a number of complaints made by staff about their professional behaviour. The psychiatrist also made a series of complaints to the local health district about the professional conduct and behaviour of several staff they alleged created a risk to employees and patients.

The health district investigated the psychiatrist’s complaints by undertaking a formal Risk Assessment. Shortly after the investigation commenced, the psychiatrist was notified they would be suspended, on full pay.

Relying on the Risk Assessment, the health district said the reason they suspended the psychiatrist was because they genuinely believed they posed a risk to employees and patients if they remained in the workplace while the complaints were being investigated.

Doctor contends their complaints triggered suspension

The psychiatrist appealed the decision, arguing the suspension victimised them contrary to section 210(1)(j) of the Industrial Relations Act. Subsequently, the psychiatrist lodged a complaint against the health district in the state’s Industrial Relations Commission.

The psychiatrist contended the suspension was detrimental because the local health district had failed to consider other alternatives and prevented them from completing their conversion pathway to registration as a fellow of the Royal Australian and New Zealand College of Psychiatrists.

At the hearing, the health district’s legal team argued that any finding by the commission the psychiatrist had suffered a “detriment”, should be made on the basis of the evidence. They relied upon the precedent set in the Bruce decision. In this case, the commission confirmed a detrimental action suffered by an employee could not be proven based on indirect inferences or assumption but only by way of evidence.

The psychiatrist’s case was a “substantial and operative” reason the health district took action to suspend them was due to their complaints about workplace health and safety. The psychiatrist believed the health district was acting in contravention of the law, which stipulates an employer must not victimise an employee who makes a complaint about a workplace matter that poses a safety risk to health.

Commission considers legitimacy of risk concerns

Ultimately, the commission considered the key question: Were the complaints made by the psychiatrist a “substantial and operative reason” the local health district suspended them?

The commission set out to assess the health district’s liability by examining the actions of the employees involved in handling the matter.

In particular, the commission considered the evidence of two employees, Dr A and the CEO. Dr A recommended to the CEO that the psychiatrist be suspended. As the decision-maker, the CEO accepted this recommendation and suspended the psychiatrist.

The commission said it was important to note that in assessing the evidence, they were not concerned with the truth or the allegations made against or by the psychiatrist. The health district explained it had an onus to satisfy itself that the suspension was not implemented in retaliation.

In their evidence, the CEO set out the reasons for the suspension. The CEO reviewed the Risk Assessment provided and approved the recommendation of Dr A.

Although, the CEO said their primary responsibility was safety in the workplace, when it was put to them that despite being aware of the psychiatrist’s complaints, they had done nothing about their safety during the handling of the matter, they acknowledged this was correct. However, the CEO reiterated the Risk Assessment demonstrated that allowing the psychiatrist to continue working in their usual role and workplace, exposed them to health and safety risks, as well as their colleagues. They also emphasised the complaints against the psychiatrist included allegations involving physical contact and threats against other staff.

Victimisation complaint unfounded

The Commissioner rejected the notion that the CEO’s real reason for implementing the suspension was to rid the health district of a constantly complaining employee, or simply to punish them. The Commissioner found the CEO’s concerns about the risks posed by the psychiatrist if they remained at the hospital, were genuine.

After carefully considering the CEO’s evidence, the Commissioner found the risks satisfied the requirement for a “substantial and operative” reason to suspend the psychiatrist from working in their usual workplace or another location, during the investigation, on full pay. The Commissioner was satisfied, based on the whole of the evidence, the health district had established the psychiatrist’s complaints were not the main reason for their suspension.

Ultimately, the psychiatrist’s application was dismissed.

Key lessons

Tread carefully

If you find yourself in a similar situation, careful handling is recommended. Generally speaking, raising your concerns at an early stage will help to resolve the issue as quickly and painlessly as possible. This case also demonstrates that although you might have legitimate concerns that affect health and safety in the workplace, bear in mind you may have your conduct investigated.

Discuss with the person directly

Ideally, complaints should be handled informally and locally, as appropriate. Try to discuss the matter directly with the person in question. If this is not appropriate, the next step is to discuss your specific concerns with your manager. If your manager is involved, or there is a conflict of interest, you should make your complaint to the next more senior manager. Be prepared for the person you are complaining about to be informed of the complaint. Initial assessments of complaints should be conducted quickly.

Obtain support

It may be useful to identify a mentor outside your workplace whom you can approach for their perspective and advice.

Avant’s Personal Support Program also provides a range of support to members, including confidential counselling on: 1300 360 364.


It is a good idea to document your version of events. Be honest and succinct in your accounts. Use ‘I think’ or ‘I feel’ statements and do not lay blame or personalise.

More information

If you require expert advice, visit our website or email our Medico-legal Advisory Service (MLAS) at: nca@avant.org.au or call 1800 128 268 for expert advice, 24/7 in emergencies.

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