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Perspective

Teacher awarded over $1 million for Principal’s negligent actions

A teacher has been awarded nearly $1.1 million after his Principal raised unfounded allegations against him and provided false information to an independent medical examiner who relied on that information to decide the employee was unfit to teach and was psychiatrically disturbed. This is the decision of Tomasevic v State of Victoria, at the Victorian Supreme Court on 9 July 2020.

Mr Tomasevic was employed by a public secondary college as a PE teacher. In response to a complaint by Mr Tomasevic that his co-worker used school funds for personal use, the Principal raised allegations of misconduct against Mr Tomasevic. Such allegations were never particularised or formally put to Mr Tomasevic. The Principal directed Mr Tomasevic attend for a psychiatric assessment to determine his fitness for duty. In his letter to the examining psychiatrist, the Principal claimed, during 1999, Mr Tomasevic had become withdrawn and was irrational in his behaviour and very depressed. Of note, the Principal was seconded to a different school during 1999 but conveyed what the psychiatrist would assume were his own observations of Mr Tomasevic. The letter also asserted he was obsessive, harassed staff, was unprofessional with students, was having delusions and drifted into unreality.

On the strength of the Principal’s letter, the psychiatrist concluded Mr Tomasevic suffered paranoia, was probably delusional and may have a schizophrenic or schizoaffective disorder and undoubtedly was psychiatrically disturbed and not fit to teach. The Principal relied on the report to direct him to take sick leave.

The evidence of other psychiatrists he saw in the ensuing months was that Mr Tomasevic did not suffer from a psychiatric disorder.

Mr Tomasevic did, however, develop a psychiatric condition as a result of being labelled delusional, when he knew he had a factual basis for the allegations he made against his co-worker. He became consumed by the need to clear his name over the next 10 years, which resulted in his negligence claim against the Department of Education. The Department conceded the Principal was negligent in the manner in which he raised allegations against Mr Tomasevic and in the instructions he provided to the psychiatrist, and those actions caused of his injury.

Key lessons

  • Any allegations of misconduct must be clearly particularised and put to the employee for a response
  • When directing a person to undertake an independent medical examination, the letter to the medical practitioner must be factual, fair and objective
  • Allegations must be thoroughly investigated and findings made on the ‘balance of probabilities’ following an analysis of all of the evidence
  • An employer or manager must not exercise bias or try to achieve a desired outcome when there is no basis to do so

As a direct result of the Principal’s actions in this case, Mr Tomasevic lost his career, his family and otherwise good mental health. That’s a heavy burden to bear.

Case: Milan Tomasevic v State of Victoria (Department of Education) [2020] VSC 415

Written by Kim McLagan

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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career.

Paul Evans

Managing Director, Toro Digital

Psychological hazards of e-working during the pandemic is a relevant factor. The Australian Psychological Society identified these hazards as conflicts between work and family, workload and over-working, future uncertainty and isolation/loneliness.

Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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