The SA Employment Tribunal delivered a judgment in favour of 62-year-old neonatal nurse Wendy Summerton, against the “Kafkaesque” treatment she received from the Southern Adelaide Local Health Service which caused her mental and physical harm.
Following a legal dispute spanning more than four years, the tribunal found Summerton had suffered a workplace psychiatric injury that “significantly contributed” to the worsening of her existing Crohn’s disease, requiring major invasive surgery.
The ruling will now help her apply for compensation.
She also hopes it will prevent others from suffering such trauma and damage – and highlight a legal avenue for those injured at work.
Summerton became so unwell during her ordeal, she lost 17 kilograms in six months and had to have ileostomy surgery to remove her damaged bowel and create a stoma bag.
“The stress was just unbelievable – it was too much to bear,” Summerton told InDaily.
“I became a recluse. I was afraid to see anybody. Even when I was out at shops if I was seen I wasn’t allowed to explain what was wrong. I was fearful of bumping into anybody I knew.”
That was a horrible four years
Summerton had worked as a neonatal nurse at Flinders Medical Centre for 16 years when she received a phone call from her manager in June 2017, advising she had been suspended from work, accused of misconduct.
She was not told what the allegations were and received a letter later, explaining only that she had been accused of providing unidentified patient records to an unidentified patient parent without consent or authority.
In his judgment, Employment Tribunal deputy president Stephen Lieschke explained the only thing Summerton could think of was that two weeks earlier she had provided a written “confirmation of attendance” document to the mother of a newborn baby who might be removed from her care by the State.
“The mother wanted a copy of the official record of her visits, as those visits had been recorded in a visitor’s log in accordance with her baby’s care plan,” Lieschke said.
“The record did not include any clinical information. The applicant then read the applicable FOI guidelines, which permitted the release of a bare ‘confirmation of attendance’ record by the responsible clinical staff. She also consulted a colleague, who agreed with providing a copy.
“After deleting any names of staff from the record, she provided a copy to the mother, together with a copy of the FOI guidelines.”
Lieschke said “this was alleged to be serious misconduct, and she was liable for disciplinary action”.
“The applicant was forbidden from speaking to anyone about the matter, other than advisors,” he said.
“The applicant was shocked at her suspension. She described a range of intense negative emotions. She immediately felt ill, nauseous, faint and anxious.
“She felt ashamed, despondent, scared and alienated. She was tearful, unable to sleep and overemotional. She experienced panic attacks. At times she seriously felt suicidal.”
…significant adverse psychological reaction… to the Kafkaesque way she was treated by her employer…
Summerton told InDaily it was the worst experience of her life and she continues to live with the effects.
“I got sicker, became more fearful of the phone, fearful of answering the door, fearful of going out, lost friendships because my friends were my workmates and I couldn’t talk,” she said.
“I avoided people because I wasn’t able to explain what was wrong.”
Lieschke said while Summerton’s manager initially told her the investigation would “hopefully be over in a couple of weeks”, it took three months and repeated requests for the hospital to provide details of the allegations that she had provided “confidential hospital records to the patient’s parent without confidentiality”.
“The record was of the mother having visited the baby she had recently given birth to,” Lieschke said.
In January the following year, seven months after she was suspended, Summerton was advised by the hospital that she was guilty of misconduct over the matter and would receive a “managerial caution”.
Lieschke explained she was then directed to report back to work to the same manager who had suspended her “although by then she was totally incapacitated for work by reason of the adjustment disorder and the aggravated Crohn’s disease”.
The sanction was finalised in writing in March 2018, nine months after her suspension.
Summerton was also advised by the nursing regulation agency that it had also investigated the matter but found no further action would be taken.
“The applicant emphasised the very significant adverse psychological reaction she had to the Kafkaesque way she was treated by her employer, starting with the phone call to suspend her, and continuing over the following nine months,” Lieschke said in his ruling.
“This was in a context of long and loyal service to the respondent as a senior (neonatal) nurse.
“I uphold the claim that the workplace psychiatric injury significantly contributed to the acceleration of Crohn’s disease and its surgical treatment of October 2018.”
Summerton’s lawyer, Margaret Kaukas, an employment law specialist from Andersons Solicitors, condemned the treatment of her client by the Southern Adelaide Local Health Service.
“I think they handled it badly,” she said.
“For a long-standing, well-respected employee, they overreacted and they were heavy-handed and they failed to adopt any humanity in their approach.”
Kaukas agreed with the tribunal’s description that it was “Kafkaesque”.
“Just that idea of an organisation and a process picking up steam and just rolling over a human being and flattening them,” she said.
“That’s a real issue in my experience in dealing with conduct issues in the public sector. They just leave you out there hanging.
“I really hope that public sector employers will try to inject a little more humanity in their industrial processes and try to remember that they are dealing with real people and real lives. Process is important but the humans are the most important.
“I hope for Wendy that she can just get on with her life.”
Although Summerton was permitted to return to her role at Flinders Medical Centre, her psychological injury has prevented that.
“They didn’t ever sack me – I just couldn’t return to that environment, she said.
“It crushed my confidence and has made me somebody that even overthinks now, ‘what if I make the wrong decision on something?’
“I truly believed I was following correct policy and hospital guidelines.”
Summerton believes her hospital managers should have spoken with her at the time if they had concerns and offered extra training if necessary.
As a result of her surgery, she is now unable to lift anything heavier than 15 kilograms “which really knocks me out of nursing”.
Summerton still works for SA Health – now at BreastScreen SA, where she feels much more supported.
She views the tribunal judgment as “justice” and “vindication in a sense”.
“I would like to think that any possible injured worker in the future had more support,” she said.
“That was a horrible four years.
“I hope now that I can just put this behind me.”
In a statement, a spokesperson for the Southern Adelaide Local Health Network said: “We are unable to provide comment on individual employee matters or ongoing matters before the courts.”
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