Document

Whistleblower letter to ombudsman

Transcript:

5 June 2000

The Ombudsman
Mr Bruce Barber
Mr Chris Wheeler
Office of NSW Ombudsman
Level 3, 580 George street
SYDNEY NSW 2000

Facsimile: 9283 2911
Telephone: 9286 1081
Tollfree: 1800 451 524

Dear Sirs,

"AMA NSW - REFERRALS AT THE INSTIGATION OR INSISTENCE OF THE PATIENT’S EMPLOYER, GUIDELINES FOR PSYCHIATRISTS:

This issue has become a problem in the context of an employer’s response to an employee’s “whistleblowing”, i.e. where employees have raised concerns over corruption, mismanagement, waste, or practices involving risk to the public occurring with an organisation, or other such matters, and where the employer is reacting adversely to the raising of those concerns. In these circumstances, insistence by the employer on referral to one or more psychiatrists has become a common means of discrediting or [and] getting rid of the employee, in a manner reminiscent of the Soviet use of psychiatry in dealing with political dissidents …

"ENDORSED BY THE COUNCIL OF NSW BRANCH OF THE AMA TUESDAY 20 APRIL 1993"

PART A

The issues of 'HealthQuesting' public servants have been widely publicised.
My Protected Disclosures to TAFE and to this office commenced in 1995 in accordance with the Protected Disclosures Act.
TAFE still arbitrarily deprive me of my job and income, yet have never carried out dismissal. TAFE admit that my work was satisfactory.

Why has your office not acted?

This has cost me personally some hundreds of thousands of dollars.

The same 'HealthQuesting'/MAP procedures have been applied against thousands of other public servants.

The documents which I have attached have been forwarded, together with my previous complaints, to Audit Office, Ombudsman, ICAC - the issues have been raised year after year. This is frustrating and incomprehensible to me

I am deeply concerned that this office has not appeared to have acted in the past to remedy the situation for me. The issues have been repeatedly reported - 'HealthQuesting' continues as in the AMA quote above. This raises questions and I am asking:

What was lacking in my previous PDs?
What was unclear?
What was insufficient?
What was not worded to a format to spur effective, efficient action?
Why was I not asked questions in order to achieve action and assistance?
Why has your office not taken responsibility for efficient effective action?

At the community's level:

What is the ratio of number of complaints received compared to the number of letters stating that your office has fully addressed the issues raised? (This is measured by the letters submitted to you by complainants)
Has your office yet addressed any issues raised against government? If so, what?
Who judges your effectiveness, and what criteria was used?

I recently supplied further material in relation to my case to your officer Mr Watson, and asked Mr Watson to present it to you and I would fax further substantiation.

The difficulty is that due to non-addressal in the past, and attempted cover-ups, the issues accumulate, re-occur and compound to the stage where there are now hundreds of documents relevant to fixing the situation. The situation cannot now be described in one epistle.

Therefore I am submitting partial information and ask that a capable office take responsibility and interact with me to whatever extent it requires to achieve addressal.

As already notified to you in my previous Public Disclosures 1995 to the present:

TAFE targeted me solely because I spoke out in the workplace
Aboriginals' confirm that TAFE practiced excluding Aboriginal (but not white) students from their legitimate classes at Kempsey TAFE.
TAFE maintained an unsafe workplace and caused me illness in the workplace
TAFE attempted cover-ups by expending public money on 'investigations' but failed to contact key witnesses
TAFE illegally purported to somehow 'retire' me without my knowledge or consent
TAFE arbitrarily excluded me from my legitimate job (similar to the arbitrary exclusion of Aboriginals at Kempsey TAFE)

During these years, my employer TAFE (now DET/TAFE) have arbitrarily attempted to purport many conflicting severances of my employment during 1995, 1996, 1997 and 1998.

It is obviously false that TAFE can sever my employment without due process in accordance with legislation, policy and guidelines. Equally, if I choose to sever the employment contract I must do so within the confines open to me: submit in writing a request to either resign or retire.

I have never submitted in writing a request to either resign or retire.

TAFE have never carried out dismissal proceedings.

A permanently appointed employee's employment status is either employed or terminated. Either TAFE carries out dismissal proceedings or else the employment stands.

This and the following sections again and continually constitute my Protected Disclosures from 1995 to date.

I ask that I may meet with a representative of the Ombudsmans office to clearly explain the situation (as I see it) and obtain feedback before we moved to further aspects of the situation. That way we will not be misunderstanding each other, and the Ombudsman may obtain complete information in order to act efficiently and effectively.

Yours faithfully

Val Kerrison

PART B

Background Legislation

1 Public Sector Management Act states in part: s36 Incapable officer may be retired (1979 Act, s 78)

If:

(a) an officer employed in a Department is found [Emphasis added]to be unfit to discharge or incapable of discharging the duties of the officer's position, and

(b) the officer's unfitness or incapacity:

(i) appears likely to be of a permanent nature, and

(ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control,

the Governor may [Emphasis added], on the recommendation of the appropriate Department Head, cause the officer to be retired.

2 Technical and Further Education Act:

Incapable officer may be retired:

s20. If:

(a) a member of the staff of the TAFE Commission is found [Emphasis added]to be unfit to discharge or incapable of discharging the member's duties; and

(b) the member's unfitness or incapacity appears to be of a permanent nature and has not arisen from actual misconduct on the part of the member (or from causes within the member's control),

the TAFE Commission may cause the member to be retired.

3 (I) Under the Enterprise Agreement signed by TAFE there is no such thing as a forced retirement [Ref: NSW Teachers Federation]

(II) TAFE have not disclosed any guidelines which override the employee's right to elect his/her own retirement.

4 Court Case: in Bliss v South East Thames Regional Health Authority [1985] it was held that:

" It was an implied term of the plaintiff's [employee Bliss's] contract of employment that the authority would not without reasonable cause conduct itself in a manner calculated, or likely to damage or destroy the relationship of confidence and trust between the contracting parties: that in requiring the plaintiff [employee Bliss] to undergo a psychiatric examination when there was no mental or pathological illness but merely a severe degree of breakdown of personal relationships, and in suspending him when he refused to submit to such an examination, the defendant [employer South East Thames Regional Health Authority] was in breach of that implied term; and that the breach, going to the root of the contract, was so fundamental as to constitute a repudiation of the contract of employment.

PART C

TAFE have difficulty carrying out a legitimate dismissal because they admit that my performance of duties was satisfactory in all respects; therefore they do not have grounds to carry out dismissal proceedings.

TAFE know this because they have repeatedly purported or pretended to terminate my employment and right to compulsory superannuation.

TAFE know that they do wrong because they hid their actions knowing that they do not stand up to public scrutiny.

TAFE repeatedly changed their story - and relied on the 'watchdogs' (including ICAC, Ombudsman etc) to condone this by turning a blind eye and inaction.

To substantiate this I attach

TAFE letter to Australians for Reconciliation office admitting that my services to TAFE were satisfactory (this means satisfactory in all respects).
27 June 1995 TAFE to First State Super Employment Termination Advice where TAFE purported "medical retirement" in its first attempt to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract
30 June 1995 TAFE to State Authorities Superannuation Board SASS10 form where TAFE purported "medically retired" in an attempt to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract
24 September 1996 TAFE Separation staff sheet where TAFE in another attempt to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract
2 October 1996 State Authorities Superannuation Board SASS10 form where TAFE attempted to purport "medically retired" to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract
26 March 1998 TAFE to SASS purporting "V Kerrison - Exit/ LWOP" to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract
26 March 1998 TAFE to State Authorities Superannuation Board form SASS5 purporting Sick Leave Without Pay from 15.4.96 to 13.9.96 and purported "medical retirement" from 13.9.96 to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract
14 April 1998 State Super Basic Benefit History Adjustment sheet showing LWOP retrospectively applied and backdated from 1 May 1996-13 September 1996 to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract
14 April 1998 State Super computer printout showing State Super applying retrospective LWOP to my employment and superannuation entitlements to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract
8 May 1998 unheaded State Super document showing "8/04/98 14:59 member [Kerrison] on sick leave without pay lwop cannot be processed case returned to mru for action" and "8/04/9 16:02 Member has ceased employment. However, we have rec'd a SASS 5 form advising that she has been on LWOP …" to sever, without my knowledge or consent, my right to compulsory employer contributions to superannuation and employment contract

TAFE have claimed through the years that outside organisations' (HealthQuest and MAP) documents terminated my employment.

However only TAFE itself makes the decision as to whom it will employ/dismiss. And, no-one has ever found me incapable of discharging my duties. No-one has named any duty which I failed to discharge.

TAFE have not carried out dismissal proceedings

PART D

The false "retirement" anomaly appears to apply to each person which HealthQuest and MAP have purported to have dismissed/retired from their legitimate employment contract when the public sector employer has chosen to act as if this was factual dismissal.

This anomaly has apparently illegally deprived some thousands of NSW teaches of their jobs (Ref: NSW Teachers Federation), and similarly and compoundingly many more employees from other government departments of their jobs.

The breach of Human Rights involved is clearly understood in the courts (See Case above.

The extent of abuse is substantial: reputedly, HealthQuest stated that they perform approx 17,000 jobs per year, and that approx half of these are for circumstances where the employee is in a 'complex' situation with his/her employer.

Presuming that the employees were earning $30,000 to $40,000 per year, and HealthQuesting has been operating for many years, it appears that the taxpayer has been robbed of its trained employees to the extent of some millions of dollars each year.

It may be readily calculated that the cost to the employees has accumulated and compounded each year that they are deprived of their job and income. When TAFE trained me through 1988-89, I calculated that this cost the taxpayer in excess of one year's salary. Their investment in my training had increased by 1995. Overnight TAFE threw away approximately $50,000+ of taxpayers' investment in me - simply because I spoke out.

Attached are a number of what appear to be fraudulent certificates issued by HealthQuest medical practitioners.

It is common knowledge that medical practitioners are authorised to issue health certificates (birth, death, HIV positive, etc). Medical practitioners are not authorised to issue employment certificates because it is the decision of the employer whether to hire or fire. No employment certificate can be issued before the fact.

But in whistleblowing cases, some departments wish to cover-up serious maladministration, corruption, etc by discrediting and getting rid of the whistleblower (See AMA guidelines above, and extensive media coverage, books, web etc).

The employer who wishes to get rid of an employee must carry out dismissal/termination in accordance with legislation. That requires that the employer must find the employee lacking in his/her discharge of duties as set out in the Statement of Duties. Then, and only then, can the employer MAKE A DECISION to dismiss the employee, then carry out legitimate dismissal according to legislation.

This is difficult for the employer to do in whistleblowing cases because all that the employee has done to incur the hierarchy's displeasure is comply with his/her statement of duties of office - report serious wrong to the hierarchy.

PART E

In 'HealthQuesting' cases, when the employer did not have evidence on which to base legitimate termination of the whistleblower, the employer hired HealthQuest to deliver a service for them. The service they bought was a document that they could elect to use to dupe. The document has been used to dupe the uninformed reader [clerical/administration staff; whistleblower] into thinking a legitimate termination of employment has taken place; albeit without the employee's knowledge, input, or consent.

I have attached a few HealthQuest "Retirement Certificate(s)" and there are more in your files. The following is HealthQuest's document and analysis and reasons for each part which HealthQuest choose to write.

HealthQuest write:

a) "RETIREMENT CERTIFICATE". This looks authoritative and dupes uninformed readers (such as clerical/administrative staff, whistleblower) into thinking that this is a genuine certificate for a genuine retirement. But:

It is common knowledge that certificates cannot be issued before a fact.
It is common knowledge that HealthQuest cannot hire or terminate others' employment.
It is common knowledge that the employee has the right and may elect whether or not to request retirement, and then sign and submit a request to retire if he/she so wishes. The employer has the right to accept and act on this request or other negotiations may take place.

b) "I hereby declare that on … date I carefully examined the abovenamed… [Commonly a whistleblower]".

c) "I find that he/she [more often "she"] is suffering from …[newly 'found' psychiatric tag]."

This sets up discrimination while it breaches Privacy.
Psychiatry is subjective and non-provable.
Discredits the whistleblower and the malpractice he/she reported

d) "I am of the opinion that he/she [more often "she"] is in consequence unable to discharge the duties of his/her office"

This is inserted for the employer to choose to use. The employer needs the words " … he/she is found unable to discharge the duties of his/her office" [emphasis added].
It is only if an employee is found incapable that the employer can make a decision and get rid of him/her under s36 of the Public Sector Management Act, or s20 of the Technical and Further Education Act, or similar.
But HealthQuest cannot factually write "he/she is found unable to discharge the duties of his/her office" because they have never seen the employee discharging the duties of office - nor are they professionally qualified to assess a teacher performing teaching duties.
So HealthQuest do the nearest that they can do to supply the words the employer is buying. HealthQuest state: "I am of the opinion…" [emphasis added]. This can dupe the uninformed reader (such as the employer's clerical assistants and the whistleblower) that this fits within the criteria required as in the Public Service Management Act s36 or Technical and Further Education Act s20 or other. But it does not. These two Acts require that the employee must be found incapable of discharging the duties of office.
The HealthQuest document is mere fee-for-comment which the employer buys knowing that only the employer's authorised staff can find an employee lacking in performance in the workplace.
A significant aspect is the discriminatory link: HealthQuest purport a disability directly followed by "therefore unable to carry out the duties of office". This is direct discrimination as set out in AntiDiscrimination Act. At the international level this is serious breach of Articles 2 and 7 of the UN Universal Declaration of Human Rights. It is equivalent to claiming that a human is black and therefore unable to carry out duties… or female and therefore unable to carry out duties… or Hindu and therefore unable to carry out duties.

e) "I am further of the opinion that his/her [more usually "her"] disability will in all likelihood prove permanent."

This is inserted for the employer to choose to use. The employer needs the words "… his/her [more usually "her"] disability will in all likelihood prove permanent" so that the employer can purport that this document fulfills all the requirement of the Public Service Management Act s36 or Technical and Further Education Act s20. But it does not. The HealthQuest document is mere fee-for-comment which the employer buys knowing that only the employer's authorised staff can find an employee lacking in performance in the workplace.
NSW Department of Health Medical Appeals Panel (MAP) purports to appeal HealthQuest's utterance. This is also a sham.
MAP does not appeal the psychiatric tag HealthQuest choose to apply to the employee and publish in the workplace (Ref: HealthQuest). Result: the employee is permanently stigmatised in accordance with AMA notification above.

MAP are not authorised to appeal any employment "Retirement Certificate(s) "

PART F

Conclusion

Neither HealthQuest, nor any medical practitioner practicing therein, has statutory right, authority or power to issue a Retirement Certificate, or other authoritative certificate relating to the appointment of the outside employees.
The "Medical Appeals Panel" has no statutory right or authority to conduct any "appeal" relating to the appointment of the outside employees.
Each public employee effected by the above are entitled to their rights of detriments made good, and effective monitoring by government agencies.

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