Colleague massage requests not sexual: Tribunal

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Colleague massage requests not sexual: Tribunal

Repeated requests for a massage from a colleague and excessively phoning and visiting her office did not constitute conduct of a 'sexual nature', a NSW Tribunal has found in dismissing an harassment complaint against a doctor.

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Repeated requests for a massage from a colleague and excessively phoning and visiting her office did not constitute conduct of a 'sexual nature', a NSW Tribunal has found in dismissing an harassment complaint against a doctor.
 
A clinical nurse consultant employed at the Wollongong Hospital Cardiac Unit claimed that from 2004 to 2005 she was the focus of a cardiac specialist doctor's 'predatory and sexual energy'.
 
She contended he relentlessly pursued her, creating an 'atmosphere permeated by sexual tension' by constantly calling her at home and outside work hours, spending excessive time in her office, providing her with gifts, and asking her to cook for him.
 
Further, the nurse claimed that after walking in on her massaging another doctor, he repeatedly made requests for her to massage him.
 
Although he admitted to having romantic feelings for the nurse and hoped to pursue a relationship beyond one of a platonic nature, the doctor denied the nine allegations made against him.
 
Harassment a 'fine line'
 
A Full Bench of the NSW Administrative Decisions Tribunal- President Anne Britton and non-judicial members Joachim Schneeweiss and Linda Monaghan-Nagle noted that there is sometimes a 'fine line between conduct that is sexual in nature and conduct that is not'.
 
They found that while the doctor had feelings towards the nurse, his conduct did not constitute that of a 'sexual nature'.
 
'While plain from the evidence that Dr Nguyen-Dang had "feelings" towards, and an interest in, Ms Kesby (nurse) this does not elevate all conduct towards her as conduct that is sexual in nature,' the Full Bench said.
 
'For example the act of giving someone flowers, in the hope that this might lead to something further, is not necessarily "conduct of a sexual nature [in relation to the recipient]".’
 
'This is not a case of a person who made repeated sexual advances or subjected another to a course of unwelcome conduct of a sexual nature.'
 
Victimisation also rejected
 
The Full Bench also rejected the nurse's submission she had been victimised by the doctor and the hospital after making complaints.
 
They found her numerous allegations including that she was pressured to withdraw her complaint and forced to be moved from her position within the cardiology unit, were unsubstantiated.
 
The tribunal found there was 'no direct evidence' that one of the reasons the hospital decided to relocate the nurse was because she was a woman or that she held 'sex-based views'.
 
The nurse's three complaints — sexual harassment, victimisation and unlawful discrimination — were dismissed.
 
 
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