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 In his letter to the examining psychiatrist, the Principal claimed, during 1999, Mr Tomasevic had become withdrawn and was irrational in his behaviour and very depressed.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.
- 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.
Written by Kim McLagan
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