Huge payout over wrongful Xmas party ‘thrust’ claim

EXCLUSIVE

A top radiologist who was wrongfully terminated after a colleague claimed he “performed a pelvic thrust” towards her at a Christmas party has been awarded more than $350,000 in damages over the claim.

Senior Radiologist Kevin Daynes, 72, sought damages in the NSW Supreme Court after being terminated from the I-MED Radiology Cairns clinic in May 2022.

The court heard how Dr Daynes was terminated from the clinic following “bullying conduct and victimisation” complaints from a female radiographer, as well as “sexual harassment” claims by a female technologist.

Dr Daynes has worked in radiology for about 35 years, specialising in breastwork.

The sexual harassment claim came after the work Christmas party in December 2021, with the colleague telling HR Dr Daynes “had acted inappropriately” by “thrusting into her and that this occurred in front of other colleagues”.

The colleague was dressed as a piece of Christmas holly and wearing a foam outfit.

Dr Daynes denies the incident ever occurred.

“An allegation of sexual harassment against any person in the workplace is obviously serious,” Judge Richard Cavanagh SC told the court.

“It is a particularly serious allegation to make in the context of a senior radiologist specialising in women’s imaging, particularly breast care.

“There is little doubt that such an allegation could impact upon the reputation of the employee and, indeed, that person’s future prospects of employment.”

Several colleagues were cross-examined during the case, with one telling the court “Dr Daynes turned towards [the woman’s side] and pelvic thrusted the side of her costume.”

However, Judge Cavanagh said he was “unable to be satisfied” with the fact that he had engaged in the conduct.

“There is really no explanation as to why the plaintiff would have done what he is alleged to have done,” Judge Cavanagh.

“There is no suggestion that the plaintiff had consumed excess alcohol. There is no suggestion that the conversation between anyone in the group was of a sexual nature.

“The allegation of sexual harassment is not made out.”

The court also heard “bullying and victimisation” claims from another colleague.

The woman said Dr Daynes would “turn and walk out of the room if she was there” and that she would “frequently receive yellow sticky notes from him saying things aren’t right”.

“She suggested that when she had to talk to the plaintiff concerning a patient request, he ignored her for a few minutes making her stand there like a child,” Judge Cavanagh said.

“Eventually he would turn around and look at her with disdain before saying, “yes?” She believed that his response to her came with an edge to it or a sarcastic comment.”

Judge Cavanagh ruled this behaviour “fell below” the definition of workplace bullying.

“The plaintiff was in a position of authority to [the woman],” Judge Cavanagh said.

“He ought to have been conscious as to how his behaviour might impact upon her. It can be said that there should be no place for rudeness and discourtesy at the workplace but the workplace remains a melting pot of persons with different personalities, different levels of experience, different levels of competence and is often mixed with high levels of stress and anxiety.”

“Again, none of that justifies rudeness or discourtesy, but there is a line to be drawn between what might be described as bullying an employee at the workplace and being rude, discourteous and uncooperative.”

Judge Cavanagh said the claims did not amount to ”serious misconduct”; therefore, the clinic was not justified in terminating Dr Daynes.

“There must be deliberate or serious misconduct or serious professional misconduct or serious breach of duty,” he said.

“It is not just any conduct or poor behaviour at the workplace which would give rise to the right to terminate without notice.”

Dr Daynes sought damages of $4.3 million, claiming that if it weren’t for the termination of his employment he would have continued work until he was 77 years of age.

However, Dr Daynes was on a fixed-term contract.

Therefore, Judge Cavanagh ordered the clinic to pay for the three months until the expiry of the contract plus a further three months which was required if Dr Daynes did not wish to continue with the fixed-term contract.

He was awarded six months of his salary – $320,000 – plus interest, totalling $367,952.56.

Dr Daynes and I-MED Radiology have been contacted for comment.