The Employment Tribunal has ordered members of doctors’ union SASMOA to immediately stop industrial action, which had been preventing new patients from being admitted to the state’s Spinal Cord Injury Service at Hampstead Rehabilitation Centre.
Medical staff launched the industrial action a fortnight ago over the reinstatement of Dr Ayman El Shafei, who won an unfair dismissal case at the Industrial Relations Commission in April.
According to the tribunal’s judgement, the industrial action was the result of concerns among SASMOA members that his reinstatement to the service would cause “significant distress and concerns for the health, safety and wellbeing of (Hampstead) staff”, some of whom had a “fear of being alone with Dr El Shafei”.
Other concerns raised by SASMOA included potential “harm and damage” to patients, “bullying and harassment”, “significant consequences for the functioning of (Hampstead)” and, specifically, the health and wellbeing of Associate Professor Ruth Marshall, who leads the service.
In ordering that staff cease the industrial action – which SA Health had argued was causing serious detriment to the service and impacts on patients – deputy president Steven Dolphin acknowledged “genuine concerns” about Marshall’s “health and wellbeing”.
Marshall has led the Spinal Cord Injury Service for more than 30 years.
She was El Shafei’s supervisor from 2013, but withdrew from that role in late 2015.
SA Health’s inability to identify a new supervisor for El Shafei meant that he was unable to remain registered to practise spinal injury rehabilitation.
This was a “significant factor” in his dismissal from the service in May 2016, according to Dolphin’s judgement – as a result of which El Shafei lodged unfair dismissal proceedings with the Industrial Relations Commission.
The following month, the commission ruled that while his termination from employment was “valid”, it was also “harsh and unreasonable”, and ordered SA Health to reinstate El Shafei to his role.
SA Health has lodged an appeal against the decision, challenging the reinstatement, but not challenging the finding that Dr El Safei’s dismissal was harsh.
It also launched an action against SASMOA in the Employment Tribunal, arguing that the industrial action was doing damage to the service and impacting patients.
SA Health executive director of medical services Dr Don Mackie told the tribunal 11 patients – two of which had spinal injuries – had not been able to be transferred to the service and four outpatient clinics had been cancelled as a result of the industrial action.
Some outpatients could not be guaranteed a place in a clinic until March or April next year as a result, he told the tribunal.
Beyond the impact on patients, Mackie said the industrial action would cause reputational damage to the service.
He conceded, however, the “depth of the scars” between El Shafei and other staff members was an issue for the service, and that if Marshall resigned as a result of El Shafei’s return to work that would present serious challenges.
He also accepted that two medical officers had already resigned from the service, citing El Shafei’s potential return to duties at Hampstead as the reason for leaving.
Nonetheless, according to the judgement, Mackie was optimistic about the prospects of El Shafei returning to work – as required by the industrial relations commission judgement – under an arrangement that would be subject to daily review, and would involve the presence of a mediator and human resources staff.
But Marshall told the tribunal there was “no basis for a working relationship if there is no trust” and that “you cannot buy back trust when it has been destroyed”.
“I don’t believe I can gain any trust in Dr El Shafei,” she is quoted in the judgement as having said.
In cross-examination, Marshall “reluctantly accepted” that her view of how El Shafei would behave should he be reinstated was “predominently based on her perception of how he did behave before his dismissal”, the judgement says.
“She did however point to recent events of some concern that saw Dr El Shafei send her unwanted emails, and where he attended (Hampstead) unannounced as being particularly stressful for her,” it continues.
SA Health accepted, as genuine, Marshall’s concerns about her health and wellbeing, but argued that those concerns did not outweigh the need to comply with the commission’s order that El Shafei be returned to work.
SASMOA argued the service would be better off without El Shafei, and that his return would cause conflict and adverse health consequences for Marshall.
El Shafei told the tribunal he had already been deprived of a return to work at Hampstead for a considerable period of time and further delay was undesirable.
He stressed his willingness to give the proposed reinstatement arrangement plan “a go” and that he was keen to return to the service.
Dolphin’s judgement reads: “I accept Associate Professor Marshall’s genuine concerns for her health and wellbeing and for the SASCIS service”.
However, he expressed hope that with a “mature attitude and a professional approach, on all sides, her concerns may be assuaged”.
“As for the industrial action I am convinced that it is damaging to the SASCIS, to its patients and the public of South Australia, and should stop.”
The judgement is an interim order in the dispute, which Dolphin described as a “bruising litigation” over El Shafei’s reinstatement, to be heard late next month.
According to the judgement, has been able to gain registration to practise spinal injuries rehabilitation in Australia, and returned to work at Hampstead on Monday this week.
He had been working at the Royal Adelaide Hospital on 0.2 full-time-equivalent hours since the Commission’s unfair dismissal decision.
A spokesperson for SA Health told InDaily Marshall remains in her role leading the service.
“This a complex matter and we are working hard to support all staff while the issue is resolved,” the spokesperson added.
“As the matter continues to be before the courts we are unable to provide any further comment.”
SASMOA declined to comment.
The full judgement is available here.
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